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“New Paradigm”


I think the titles of these two articles—but especially when juxtaposed—tell us a lot about what’s going on in the United States of America:

Terror lawyer Bush’s new legal chief
A more moderate voice as AG


But then, so do these two:

Bush selects evangelical for attorney general post
Nominee for Attorney General Rides an Ideological Divide

The second contrast is more nuanced, admittedly, than the first. (I should add that in another version of the “Bush selects evangelical for attorney general post” article, the editors had chosen the headline: “Bush gives top law post to torture apologist.” A far more fitting title, to be sure, for the gentleman in question. And a dirty shame that the editors backed away from “torture apologist,” and went with the far softer “evangelical” instead.)

Of course, all of these titles are referring to one man: Alberto R. Gonzales, the head of the White House’s Office of Legal Counsel since 2001—and as of Wednesday, also the White House’s nominee to become the next U.S. Attorney General, succeeding John Ashcroft, who resigned the day before.

A lot of professional opinion in the States was glad to learn of Ashcroft’s resignation. From what I came across yesterday and today, this included the editorial voices of the Baltimore Sun (“the administration’s most divisive figure”), Boston Globe (“divisive and authoritarian”), Chicago Tribune (“conspicuously polarizing”), Los Angeles Times (“staked out the most obtusely hard-line positions”), New York Times (“highly polarizing”), Newsday (“extraordinarily divisive, intemperate and much too willing to sacrifice constitutional rights in the name of security”), San Francisco Chronicle (“undermined the judicial safeguards on our civil liberties”), and the Washington Post (“polarizing tone”). No doubt others, too. (Though I confess to not having checked the editorial voices of the Wall Street Journal or the Washington Times.)

Amazingly, the major daily newspaper where I live—one of the few majors anywhere in the States to have endorsed the incumbent president for re-election in 2004—welcomed the departure of Ashcroft, whose “scorched-earth rhetoric only fueled opposition,” and was “often unnecessary and counterproductive,” even injuring the “trust and prestige” of his office. But, then again, maybe it wasn’t so amazing. Because then came the punchline: Ashcroft’s departure is welcomed because the man nominated to succeed him might not commit the same public-relations gaffes that Ashcroft did. Had the 2001 USA Patriot Act, for example, “been advanced and defended by a more sober and judicious attorney general, it might never have become a favorite liberal bogeyman,” the problem with this monstrous and no doubt unconstitutional Act lying, not with the capricious powers that the ever-expanding American state has arrogated to itself, but with the bad feelings some of its clumsier advocates stirred up among the radicals at the ACLU. “It would also stand to get a more sympathetic reception from Congress, which will have to decide whether to renew several controversial provisions that are scheduled to expire at the end of 2005,” this editorial continues. “Maybe Gonzales, who would be the first Hispanic attorney general, is the person to change the climate at the Justice Department.” (“Ashcroft’s welcome departure,” Chicago Tribune, Nov. 11, 2004.)

(Ahah! Now I’ve got it. By George. Not “Anybody But Bush.” But: Anybody But Ashcroft. So what if they’ve got to assuage those liberals? (Presuming they can find any.) Now. There’s a new cry for The Nation-Left to rally around. Anybody But Ashcroft it is, then. I think I’m finally getting the hang of this post-election pontificating game. With its Great American Ideological Divide Industry. Wherein everybody is a demographics category. A potential target of manipulation. And nobody human. Anybody But Humans. Bingo! Congratulate me. Or pinch me. Whatever.)

So what about Ashcroft’s successor? If I see one more quote from the Democratic New York Senator Charles Schumer, who sits on the Senate Judiciary Committee, which will hold hearings on the latest nominee, to the effect that the new nominee is a “better candidate than John Ashcroft” was—I’m going to scream.

The man nominated for the post of U.S. Attorney General is the same man who, as then-Texas Governor George Bush’s General Legal Counsel in the mid-1990s, provided his boss with factual and legal briefs before the state dispatched as many as 56 death-row inmates appealing for their lives to be spared, with only one clemency granted out of the 57 appeals he reviewed.

He also happens to be the same man who, more recently, invented the legal reasoning of the Memorandum for the President dated January 25, 2002, explaining why his boss’s determination that any Al Qaeda or Taliban prisoners captured by American forces were “unlawful enemy combatants,” and therefore did not enjoy the protections of the Third Geneva Convention Relative to the Treatment of Prisoners of War, was a net “positive,” but in particular for his boss and his boss’s associates, because it “reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).”

Now. What Gonzales tried to give his boss in the form of the January 25, 2002 Memo was the legal go-ahead for his boss to rule by fiat in an area of U.S. law where fiat is precluded by the U.S. Constitution and by the U.S. Senate’s history of ratifying not just the Third, but all four of the so-called Geneva Conventions pertaining to the laws of armed conflict.

The reason Gonzales tried to give this to his boss in this case was the same as in all similar cases in the history of their relationship: Because his boss wanted it. And, more important, because his boss needed it, given the illegal conduct of this regime in its treatment of the so-called “War on Terror” prisoners. (And a host of other enterprises—not the least of which is its penchant for starting wars.) Like the lust for blood in the state in Texas, which caused the then-Counsel to Governor Bush to find that 56 of the 57 petitions for clemency filed with the Governor had no merit (i.e., if he had found them to have merit, the State of Texas couldn’t have executed the prisoners, you see); so, too, the Counsel to President Bush was able to find that the President has the “constitutional authority to make the determination…that the [Third Geneva Convention] does not apply to al Qaeda and the Taliban” (here quoting the January 25, 2002 Memo, which also begs the question of whether a captive even belonged to al Qaeda or the Taliban in the first place).

Well. Does anyone sense a pattern at work here? An executive of the state (Texas, the USA) carries out a number of policies; the basic morality and/or the legality of these policies becomes an issue; and a certain legal counsel attached to the executive comes riding in on his hobby horse, and explains that what the executive already has been doing (de facto), he has every legal right to do (de jure).

Of course, the laws of the land may not be written anything remotely like this. But, so what? This chief executive has one thing going for him that his rivals do not: P-O-W-E-R. (At least they think they don’t. The same thing.)

Pretty neat job. Huh? No wonder Bush leapt at the chance to replace John Ashcroft with Alberto Gonzales.

This is exactly how the trajectory of Alberto Gonzales’ latest career move looks to me. On questions of war and peace and American Power, the Imperial Presidency reigns supreme. Executive fiat rules. But especially under the “new paradigm” of the “war against terrorism,” to return to the Gonzales Memo. While anybody the President determines to be “al Qaeda”/”Taliban” and an “unlawful enemy combatant” is, therefore, al Qaeda/Taliban and an unlawful enemy combatant.

Carl Schmitt, meet Alberto Gonzales.

Remember: Terrorists will not follow the Geneva Conventions in any event—an insight we all owe to White House Counsel Gonzales.

State-terrorists in particular.

Memos Reveal War Crimes Warnings,” Michael Isikoff, Newsweek (web exclusive), May 19, 2004
Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban, Alberto R. Gonzales, January 25, 2002 (a.k.a. the Gonzales Memo)

What kind of justice?” Editorial, Baltimore Sun, November 11, 2004
After Ashcroft,” Editorial, Boston Globe, November 11, 2004
Ashcroft’s welcome departure,” Editorial, Chicago Tribune, November 11, 2004
Gonzales Is a Disastrous Choice,” Editorial, Los Angeles Times, November 11, 2004
After John Ashcroft,” Editorial, New York Times, November 11, 2004
Next attorney general should be far more respectful of the Constitution,” Editorial, Newsday, November 11, 2004
John Ashcroft’s overdue departure,” Editorial, San Francisco Chronicle, November 11, 2004
Change at Justice,” Editorial, Washington Post, November 11, 2004

Legal eagle is at one with America’s hawks,” Peter Spiegel, Financial Times, November 11, 2004
Bush names new attorney general,” Julian Borger, The Guardian (London), November 11, 2004
Bush selects evangelical for attorney general post,” Andrew Buncombe, The Independent, November 11, 2004
Hardline terror lawyer Bush’s new legal chief,” Roy Eccleston, The Australian, November 12, 2004
Law chief linked to abuse culture,” Phillip Coorey, Herald Sun (Melbourne), November 12, 2004

High Crimes and Misdemeanors, ZNet Blogs, November 9, 2004

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