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If it's more than 30 minutes old, it's not news. It's a blog.

Wednesday, November 10, 2004

Gonzalez swings into the center ring -- Your guide to the circus

Update 18 July 2006: Analysis of DoJ Gonzalez admission that POTUS obstructed DoJ OPR. Yes, there's something you can do. [ Here's what you can do ]

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Original Blog

Gonzalez agrees to take over the DoJ Circus.

This is the same guy who said it was "OK" for the President to violate the Geneva Convention in re torture.

Your Guide to the Gonzalez Circus

Can we trust him to do what is needed? Fat chance

Is this the right guy for the job? No Not likely Get real

Can DC actually focus on the critical issues? No Whatever

Is Congress ready to ask the tough questions? No Ha!

Is the Senate Judiciary Staff ready to do their job? No Doh!

Will anything really change in the DoJ cess pool? Unlikely Wazzzup? I don't think so

We shall soon find out -- Here's a guide to monitor the circus.
The time for reform and reconciliation ended before it started. Despite the Republican victory in all three branches of government, and both houses, the Republicans are fighting within their own ranks over who will lead their own party in the Senate Judiciary Committee, the body that will oversee the nomination hearings of the new AG and Chief Justice.
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Senate Confirmation Hearings: Your Circus Entertainment

  • Opportunity to watch the new Judiciary Committee chairman: Does he carry a whip or a pile of sugar candy?

  • How issues are resolved with the Judiciary Committee: Do they clean up the mess, or keep walking through it?

  • This is your chance to see how the Judiciary Committee might handle the President's upcoming Supreme Court nominations: Do they rise to the occasion, or still need a net?

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    Gonzalez credibility in providing oversight on legal issues

    Issue: Questions during Senate Confirmation

    Gonzalez's record before the Texas Supreme Court is of less immediate importance. If we refer to his most recent record in the White House, we find cause for alarm.Ref

    The Memos were drafted only a few months after the Inspector General inside DoJ were notified of problems at Abu Ghraib. Yet, there is little to suggest despite these reports of misconduct that Gonzalez effectively moved to provide sound legal advice. Ref

    More troubling is that his statements in the White House memo are contrary to the needed oversight required of the Attorney General when reviewing allegations of misconduct given to him by the DoJ Office of Professional Responsibility.

    We are not persuaded in the future that if there are substantive issues raised, as was done in Guantanamo and Abu Ghraib, that Gonzalez as attorney general will provide the timely leadership and guidance needed.

    It is troubling that the Congress will have to provide this oversight and the track record of Attorney Generals being unresponsive to simple requests is noteworthy.

    Gonzalez's oath of office was not to the President but the Constitution and there was no privilege in re matters of criminal law and allegations of war crimes.Ref There is no compelling precedent to justify silence or inaction when faced with these serious charges.

    It is not unusual to have an undisciplined agency continue to repeat abuses, misconduct. We are also concerned that the recent Court rulings in re the Guantanamo Trials clearly establish that the Administration's plans were unlawful in re tribunals. We could go so far as to say that the Geneva Conventions were ignored, and there was nothing within DoJ that ensured the laws of war were applied.

    Consider the language at the bottom of page 4 of this memo stating that the treaties are not applicable when the United States goes to war against non-states. Ref The status of combatants is to be determined after they are captured; it is not the role of the United States to arbitrarily state that a treaty does not apply, therefore the tribunals are not required. This is backwards.

    The treaty's core function and principle is to prevent abuse as a shield, not to be looked at as Swiss cheese to which we find holes to justify engaging in the abuse, or at worst ignoring the abuse until we have photographs on the front page of the local paper.


    How will Gonzalez as Attorney General ensure that the treaty terms are followed, not explained away; and that the proper legal counsel within the various departments are so advised to ensure their respective agencies comply with these statutes, and do not use legal nuances to justify ignoring the core principles of the treaties?

    What would Gonzalez as the new AG do about DoJ legal opinions related to the laws of war; what program or approach would Gonzalez use to ensure that legal issues like this are adequately handled by Staff Judge Advocates within the Department of Defense? Ref

    Why was DoJ asked for legal input rather than not relying exclusively on the legal experts on the laws of war within DoD; are we to believe that DoJ was actually involved with the alleged torture, abuse, and misconduct which prompted the White House to raise the question with DoJ?

    What does Gonzalez plan to do about the apparent lawlessness within the DoJ legal community that would find it acceptable to ignore the Geneva Conventions, not conduct a trial as required, and arbitrarily state that the detainees are not entitled to protections?? Ref Ref

    In the future should other events of this nature occur, why should we have any confidence that Gonzalez will move any more quickly?

    Because of his most recent written statements on war crimes and use of torture, why believe Gonzalez as AG will aggressively look into delays in reporting by NAVY IG to FBI [plans to abuse prisoners] as required by statute?

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    Hornet's Nest

  • Contrast Gonzalez Track records as Supreme Court Justice with the Torture Memo

  • Senate Confirmation Hearing: More whitewashes by the undisciplined staff?

  • Turmoil within DoJ: More to follow?

  • Senate Judiciary Committee Meltdown: Do they need ice cream again?

  • Relationship with Congressman Goss, New Director of CIA; likely relationship between CIA-DoJ-FBI compared to pre 9-11

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    Why believe things will change?

    What will Gonzalez do differently than Ashcroft?

    What actions while on the White House staff will no longer be condoned?

    Will we have more arrogance, or different approach to lawlessness?

    Given the entrenched, stinky mess at DoJ [which has not been fixed under Ashcroft] ... Will a new AG offer a real prospect of improvement, reform, accountability, responsiveness, or clean up; or are we going to have more of the same?

    Should we just start over with a new building closer to Congress?

    What are the prospects the DoJ IG report in re 9-11 will get any attention?

    Was Gonzalez part of the "wall" within the White House discouraging active attention, action, and Presidential involvement and interest in the indicators prior to 9-11? RefRef

    Why didn't the Judiciary Committee call Gonzalez before in re the letter?

    What is going to change in Congress to ensure that the "do whatever you want" attitude Gonzalez displayed in the White House memo faces some credible security should Gonzalez be approved to be Attorney General?

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    DoJ's Perfect Storm

  • DoJ Management Issues: They killed witnesses in Abu Ghraib
    - Leaderless and defective management and organization
    - Bad stuff: War crimes, misconduct, allegations of cover-up
    - Old stuff: IG 9-11 report fallout and clean-up
  • Congress distracted: So what's new?
    - Senate Committee chairman dispute
    - New stuff: Conformation for AG and Supreme Court

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    DoJ Staff Inertia: A Legacy of Inaction

    Issue: It's been three years since 9-11 and nothing substantive has been done.

  • Lawlessness is entrenched regardless who is Attorney General

    - Ashcroft failed to ensure conduct consistent with the constitution [Patriot Act found unconstitutional; investigations of DoJ personnel ineffectual; personnel detained without probable cause;]

    - Gonzalez legacy as White House Counsel indicates no different approach to the rule of law, constitution, or treaties

  • Prior AG

    - Failed to act prior to 9-11 [Still no accountability in re DoJ IG audit]

    - Andersen audit of DoJ failed as a catalyst for needed reform

  • New AG: DoJ has another excuse not to change

    - "We have the turmoil of a new AG to deal with and can't possibly be expected to reform"

    Why believe appointing a new Attorney General is going to change anything within DoJ?

    Why should we believe that appointing a new AG is going to make a difference in DoJ's culture, responsiveness, accountability?

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    Adequacy of Congressional Oversight

    Issue: Illusory Congressional oversight

    Are there probing Senate Judiciary Committee questions for Gonzalez over the White House Memo "approving" torture?

    Notice: Areas to monitor

  • Issues Highlighted: They shining that circus spotlight through a pinhole?

  • Questions raised: The standard one-question per Senator?

  • How Addressed: More cursory reviews?

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    Adequacy of Senate Judiciary Staff Support to the New Chairman

    Issue: WH Counsel letter in re Torture

    Notice: What type of analysis the staff conducts on the White House memo, and whether staff examines the following questions

    - What core principles surfaced in the White House memo?

    - How does language within the memo compare with Gonzalez' habits/practices while TX Supreme Court?

    - What insight into Gonzalez approach to issues?

    - How is Gonzalez likely to "handle" issue within DoJ?

    - What steps does the staff and judiciary committee take to evaluate whether practices either in Texas or while in the White House are going to be problematic and require additional oversight?

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    Responsiveness to rule of law

    Issue: The law says one thing, but what Gonzalez can "get people to do" is something else.

    Gonzalez Timeline

    2002: DoJ Drafts torture memo approving abuse

    2002: Gonzalez condones misconduct Ref

    2002: Despite proximity to the White House, unable/unwilling to put the rule of law first
    - No action taken prior to 9-11 or while at the White House

    2002: DoJ personnel [Foxes] were on site in Guantanamo and Abu Ghraib [Henhouse]

    2004: Now in charge of the JTTF-FBI personnel who committed the abuses -- Ha!


    Why should we believe Gonzalez will do anything about those he failed to previously stop when he had the opportunity? Ref

    Why believe he'll do anything differently now -- he has less access to the White House, but is responsible for "disciplining" those he already said "it was OK to do what was not permissible"?

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    Judiciary Committee Oversight

    Oversight Issue

    Whether the Judiciary Committee uses the Gonzalez confirmation hearings to probe into issues related to White House knowledge/failure to act in re war crimes.

    Criminal Law

    Does the Senate Judiciary Committee use the confirmation hearing as the first step in reviewing whether there is information that would for the basis for appointing a special prosecutor in re investigation White House knowledge of, but failure to stop War Crimes


    What were the conditions upon which the WH Memo was written?

    Was the memo written as a ruse to create the illusion of leadership?

    Was information already received and the memo was a ruse to backdate policy?

    Once the memo was reviewed, what efforts were made to ensure the President's policy was lawfully executed?

    If the memo was clearly rebuked after the initial reports, why was there no effort in the White House to ensure that the actual misconduct was timely investigated and stopped?

    To what extent are matters of "national security" used as top cover to explain away matters of criminal law?

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    A track record at odds with accountability

    * 42 USC 1983: DoJ AG Civil Rights Liability Risk

    We are concerned that Gonzalez when he was in a position to advice the President [in a non-confidential, non-privileged basis, as evidenced by the open memo] that he failed to provide the needed caution and alarm.

    As a close advisor to the President, Gonzalez will be assuming a new job, yet Gonzalez will not have absolute immunity. 42 USC 1983 does not bar civil litigation against a standing officer for allegations of misconduct, or failures to conduct their duties in a manner consistent with the law, or for providing legal advice contrary to law.

    It is of concern that during a time that Gonzalez was in close proximity to the President, he provided legal advice that essentially "approved" acts of misconduct that are now being litigated.

    It remains to be seen to what extent future abuses under DoJ are found to be related to a green light from the former White House Counsel and can be shown to be part of a wider pattern of conduct for purposes of 42 USC 1983 liability on DoJ AG. It remains to be seen whether these litigation matters are going to be a distraction to the new Attorney General.

    When issues of dispute arise, we are not persuaded that he will necessarily do what is consistent with the constitution, but "whatever he deems justifiable, regardless the creative, tenuous, and disjointed legal framework used to arrive at his conclusion.

    We are not persuaded that, barring civil consequences for his alleged involvement, that anything is going to change as Attorney General. Despite close proximity to the President, Gonzalez was unable to persuade the President to get in compliance with the statutes. Ref

    How does the Attorney General plan to ensure the "ability to influence policy" is not taken lightly, and that the Attorney General actively injects himself into issues to prevent unlawful, unconstitutional, or misconduct to occur; and that those matters are swiftly investigated?

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    DoJ Leadership Vacuum: Nothing New

    What's worse: Having DoJ being run by Ashcroft or being without a leader?

    Who cares, the Constitution got trashed, and Gonzalez did nothing as White House counsel to stop either the President or Ashcroft.

    There's no reason to believe, while he's in a position further from the White House, that he'll do more or be listened to. The same performers who failed up prior to 9-11 are still there playing with fire.

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    FBI Agent Misconduct

    Ref: FBI MAOP, FBI Agent Misconduct

    Issue: Discipline

    FBI has a poor record of adequately disciplining its agents. The lack of public accountability is troubling. Not only are we three years after 9-11, but citizens like Sibel Edmonds have been harassed for daring to bring forward complaints of DoJ Senior Management misconduct.

    Why believe the OPR will investigate or be effectual? Ref

    What's the DoJ AGs plan to discipline the FBI Staff?

    What got in the way of FBI I-drive communications? Ref

    What is DoJ going to do about the pattern of abuse against DoJ Whistleblowers? Ref

    Repeated memos and statutes have been issued saying that DoJ whistleblowers should not be abused; what is going to be done differently to make sure the memos are actually implemented not ignored?

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    Examining Gonzalez' Texas Supreme Court Track Records

    Issue: Adequacy of Gonzalez' Management practices


    - Whether Senate Judiciary Staff and Committee focus on Gonzalez's management practices while on the Supreme Court [Ignored, glossed over?];

    - Whether there is reasonable weighting to management issues in Texas over staffing issues while on the White House Staff [Focus too much on Staff experience and ignore the leadership issues?]

    - Reasonableness of criteria in evaluating Texas Supreme Court management practices [Are they clear, or do they wander around without anything resembling order?]

    Sample Criteria

  • Approach to issues: Lawful, logical?

  • Problem Resolution: Is the issue solved, or explained away?

  • Creativity and novelty of approaches: Lawful, or stuck in the headlight?

  • Responsiveness to deadlines: Busted suspenses, or cases deleted without a trace?

  • Working with staff and outsiders: Was he grouchy, or a pain?

  • Responsiveness to early signs of problems: Ignored, explained away, shoot the whistleblowers who dared to wade their way through the AOC's office?

  • Principles adhered to in practice, vs what says he will do [Do they even bother to compare his Ex caselaw opinions to that which he says before the committee?]

  • Credibility of memoranda Ref [Can you really believe what he writes?]

  • Whether personnel are fired for malfeasance Ref [Does he really take action based on audit report feedback, or are the points of contact and suggestion programs given lip service?]

  • Extent misconduct explained away as permissible or understandable given the "national security issues" and criminal law matters are ignored and sidelined with the constitution [Is "criminal law" explained away in the time of "heightened alert"; why they opening up the sidewalk in front of the White House, but the rest of America is on lockdown and surveillance?]

    "He served on the Texas Supreme Court with Justice Priscilla Owen, and 11 times, he attacked her judicial philosophy as being far too activist, which is something conservatives traditionally don't like. Ref