Alberto Gonzales & the Lawyers of the Third Reich


As Attorney General Alberto Gonzales struggles to keep his job due to the
U.S. Attorney firings scandal, many have forgotten the role he played in
creating policies that are profoundly more troubling from a global perspective.
These policies—particularly the “torture memos” prepared by Gonzales and
his colleagues from 2002 to 2003— led to grave breaches of the Geneva Conventions,
the UN Convention against Torture, and the UN Charter. 





The most infamous memo was a January 25, 2002 letter from Gonzales to Bush,
which argued that “the war against terrorism is a new kind of war…. [T]his
new paradigm renders obsolete Geneva’s strict limitations on questioning
of enemy prisoners and renders quaint some of its provisions” regarding
treatment of suspected Al Qaeda and Taliban members. Gonzales also noted
that this would substantially reduce the threat of criminal prosecution
of U.S. personnel for war crimes. It is now clear that the memos soon became
official policy, leading to the classification of detainees as “enemy combatants”
who were stripped of their legal rights, harsh interrogation techniques
that eventually included torture, and the escalation of “extraordinary
rendition” (state-sponsored abduction) of suspected terrorists to secret
overseas prisons. 



Once the memos were released in 2004, human rights and civil liberties
groups sought to hold the Bush-Cheney legal team accountable for detainee
abuses at Abu Ghraib, Guantanamo Bay, and secret overseas prisons. Their
efforts reached a climax when the Center for Constitutional Rights and
dozens of other organizations filed a criminal complaint in Germany last
November on behalf of 12 detainees. The suit alleged that Gonzales, Rumsfeld,
and a dozen other U.S. officials committed war crimes and crimes against
humanity. 



Executive Power Grab 



The U.S. Attorney firings and other domestic scandals in which Gonzales
has been implicated—the National Security Administration’s use of warrantless
surveillance and the FBI’s abusive application of the USA PATRIOT Act—are
the other side of a radical executive power grab that became apparent after
the September 11 attacks. It included Congress’s rapid passage of laws
that ceded tremendous power to the president and a series of executive
decrees framed within the context of a newly declared “war on terror.”
 



Gonzales (who was Bush’s legal counsel at the time) was deeply involved
in forging these policies, along with an entire team of Bush-Cheney lawyers
that included David Addington (Cheney’s legal counsel), John Yoo and Jay
Bybee (Justice Department lawyers in the Office of Legal Counsel), and
Timothy Flanigan (deputy to Gonzales during his tenure as White House counsel),
among others. Most were members of the ultraconservative Federalist Society
and subscribed to the “unitary executive” theory—the idea that congressional
and judicial power over the executive branch should be strictly limited
and that the president should retain absolute control over all cabinet-level
agencies. 



Many of the new policies swept away restrictions on the treatment and interrogation
of detainees, which shocked a number of prominent people in the U.S. In
January 2005 a dozen retired generals and admirals publicly opposed Gonzales’s
attorney general nomination, declaring, “U.S. detention and interrogation
operations in Afghanistan, Iraq, Guantanamo Bay, and elsewhere…have fostered
greater animosity toward the U.S., undermined our intelligence gathering
efforts, and added to the risks facing our troops serving around the world.” 



Days later, members of the Senate Judiciary Committee attending Gonzales’s
confirmation hearings were stunned by Admiral John Hutson’s testimony.
Hutson, a retired U.S. Navy Judge Advocate General, warned, “The strongest
nation on earth can ill afford an attorney general who engages in sloppy,
shortsighted legal analysis or who doesn’t object when others do.” 



Even more frightening are the words of retired U.S. Army Judge Advocate
General Corps, Jordan Paust, who wrote, “Not since the Nazi era have so
many lawyers been so clearly involved in international crimes concerning
the treatment and interrogation of persons detained during war.” Other
legal scholars, including Scott Horton and Sanford Levinson, have made
similar observations. 





Bush-Cheney’s Legal Team and the Third Reich Jurists 



Such comments beg a serious question: To what extent are Bush’s legal counselors
(including Gonzales) playing a role analogous to that of Nazi jurists in
the 1930s? The answer is disturbing. Though there are obvious differences
in political ideologies and historical context, there are key similarities: 



1. A state of emergency was declared to strengthen executive power. In
both cases, government lawyers claimed that extraordinary circumstances
required boosting executive power vis-a-vis both Congress (Reichstag in
Germany) and the courts. In Germany, a “state of emergency” was triggered
by the February 1933 Reichstag fire, which led to President von Hindenberg’s
signing of the Reichstag Fire Decree. This allowed the Nazis to suspend
civil liberties and detain suspected Communists. A month later the Reich-
stag passed the Enabling Act, which gave the chancellor power to enact
laws, foreign treaties, and constitutional changes without parliamentary
approval. 



In the U.S., the 9/11 attacks triggered a “state of emergency.” Congress
passed the “Use of Force Resolution” on September 14 (which ceded war power
to the president) and the USA PATRIOT Act on October 26 (which restricted
civil liberties). A November 13 executive order proclaiming a state of
“extraordinary emergency” announced rules for defining enemy combatants
and for forming military commissions not subject to congressional or judicial
review. 



2. Political theories provided a legal framework for executive usurpation
of power.
In the 1920s, influential German legal scholar Carl Schmitt argued
that a strong dictatorship more effectively embodies the people’s will
than parliamentary democracies, since dictators can act more quickly and
decisively. He theorized that a government capable of decisive action must
include a dictatorial element in its constitution, which can be triggered
in emergencies. This was the tool he crafted for dismantling liberal democracy.
(Schmitt later joined the Nazi party and was appointed director of the
Union of Nazi Jurists.) This theory became fully developed in the “Führer
principle”—the notion that the Führer’s will is the law—and was realized
in 1934, when Hitler merged the offices of president and chancellor. 



In the U.S., the unitary executive theory emerged as an important concept
among a radical Republican fringe beginning in the 1970s. In a recent article
for the New Republic, Jeffrey Rosen documents the development of this theory
in recent years, highlighting the post-9/11 transformation of unitary executive
theory into practice under the guidance of Gonzales, Addington, Yoo, Bybee,
Flanigan, and others. 



3. Parliamentary power was reduced following legal reforms. Parliamentary
power in both cases was reduced to a shadow of itself as checks and balances
eroded. In Nazi Germany, the impact of the Enabling Act was so severe that
by 1934, the Reichstag was effectively a rubber stamp for the Führer. 



In the U.S., Congress has not effectively challenged the expansion of executive
power since 9/11. Even the conservative group American Freedom Agenda (founded
by four prominent Republicans) has recently expressed concern that “since
9/11, the executive branch has chronically usurped legislative or judicial
power, and has repeatedly claimed that the president is the law.” 



4. Officials from the executive exerted pressure on jurists to limit their
independence.
In Germany Nazi Justice Minister Roland Freisler warned judges
in 1934 that, “It is not the role of the judge to alter the existing laws
of the nation” because “chaos and anarchy would replace unified leadership”
were judges to “decide questions which can be solved only from the superior
vantage point of the Führer.” 




In the U.S. Alberto Gonzales has directed polite warnings to the Supreme
Court—for example last September when he said, “The Constitution…provides
the courts with relatively few tools to superintend military and foreign
policy decisions, especially during wartime…. [W]hen courts issue decisions
that overturn long-standing traditions…they cannot—and should not—be shielded
from criticism….  A proper sense of judicial humility requires judges to
keep in mind the institutional limitation of the judiciary.” The U.S. attorney
firings are a not-so-polite warning to independently minded federal prosecutors. 



5. Legal advisors argued that an unconventional enemy rendered international
laws obsolete.
In the case of the Nazis, the German General Staff claimed
that Russian “partisans” driven by radical Communist ideology were engaging
in terrorist attacks, and therefore not subject to the protections of the
1929 Geneva Conventions or the 1907 Hague Convention. 



In the U.S. Gonzales, Yoo, and others have argued that Al Qaeda and the
Taliban (among others) are driven by radical religious ideology and engaged
in terrorist attacks and are therefore not subject to the 1949 Geneva Conventions.
Consequently, both the Nazi jurists and the Bush legal team viewed international
laws as obsolete. 



6. Transformations in law led to state-organized brutality. In both cases,
the consequences of legal opinions, memos, and directives led to state-organized
practices of brutal interrogation, torture, and extermination of enemies.
Secret prisons were a feature of both Nazi and U.S. systems though there
are significant differences in scale. The Nazis organized the mass murder
of millions of people. By contrast, 108 “detainees” have been reported
killed in U.S. custody since 2001, with 34 of those suspected or confirmed
homicides resulting from harsh interrogations. (It is important to note,
however, that an estimated 655,000 “excess deaths” of Iraqis have occurred
since 2003, the vast majority of which were civilian deaths.) 



Points of Difference 



There are, of course, important differences. Nazi lawyers adopted a political
ideology cast in terms of “race,” “blood,” and more generally, the “people”
(volk). The good of the volknot of individual Germans—was given precedence
over other considerations and Nazi jurists viewed the Führer as the embodiment
of the people’s will. This has no analog among the members of the Bush-
Cheney legal team. 



Another difference is that in the case of Germany, the Reichstag never
recovered independent power until after the war. In the case of the U.S.
elections of 2006, the Democratic party succeeded in winning a majority.
Whether or not they will be willing to roll back the gains in power made
by the executive branch since 2001 remains to be seen. 



So far, the results have been mixed. While the Senate Judiciary Committee
has begun investigating the Justice Department’s domestic policies, they
are not likely to repeal the Military Commissions Act or reinstate habeas
corpus rights for aliens. 



Despite these distinctions, the lengthy list of similarities should concern
those who cherish a democratic system of checks and balances. It should
also give pause to those who value the rule of international law. 



It would be fair to note that the Bush-Cheney administration represents
one end of a relatively narrow political spectrum in the U.S., which at
the supposed liberal end is represented by the Clinton administration and
“new Democrats” such as John Kerry. It is worth remembering that extraordinary
rendition was developed by the Clinton administration in the mid-1990s
following the Oklahoma City bombing (even though that tragedy was orchestrated
by Americans). Furthermore, the “regime change” policy towards Iraq was
first formalized when Clinton signed into law the Iraq Liberation Act of
1998. It was also William Cohen (Clinton’s defense secretary) who noted
that the U.S. would make “unilateral use of military power” to ensure “uninhibited
access to key markets, energy, supplies, and strategic resources.” 





John Kerry, days before the 2004 presidential elections, told the Boston
Globe
, “I do not think the United States should join the International
Criminal Court…. U.S. officials, including soldiers, should be provided
some protection,” presumably from those seeking to apply the Geneva Conventions
and the UN Convention against Torture. Never did the “new Democrat” display
concern for providing protection to civilians in Iraq and Afghanistan,
much less to those illegally detained at Guantanamo. 



Imperial Presidency? 



How does Alberto Gonzales fit into this picture? He has been deeply involved
in the creation of “enemy combatant” policies, the torture memos, legal
justifications for the U.S. invasion of Iraq, and the escalation of extraordinary
rendition policies. He has also been deeply involved in other policies
that have dramatically expanded presidential power—through warrantless
surveillance and in firing U.S. attorneys for apparently political reasons.
 



Gonzales and a handful of others pursued an unprecedented power grab on
behalf of Bush and Cheney to the point that some establishment conservatives
describe their policies as “reminiscent of the kingly abuses that provoked
the Declaration of Independence.” 



The conservative Financial Times of London—typically understated in its
approach—recently summarized Gonzales’s career by reminding readers that
“As attorney-general, he is meant to be the people’s lawyer—not the president’s….
[H]e has provided spurious legal justifications for government torture,
detentions, and surveillance policies, parts of which have been found to
violate U.S. and international law and the U.S. constitution…. [Mr. Gonzales]
has amply proved that he will never be anything other than Mr. Bush’s lawyer—a
mere apologist for the imperial presidency.” 



As the U.S. attorney firings scandal unfolds, it is important to view it
and other domestic abuses as part of a broader authoritarian project orchestrated
by Gonzales and other unitary executive theorists. Most recently, this
has included the creation of the Military Commissions Act of 2006 by the
Bush-Cheney legal team and key members of the U.S. Senate. (It was passed
into law by Congress last fall as a response to Supreme Court decisions
that checked the president’s power to hold detainees indefinitely without
charge.) The MCA terminates the writ of habeas corpus for non-citizens,
grants the president the right to label persons “enemy combatants” thereby
stripping them of their legal rights, and grant retroactive immunity for
government officials who authorized or ordered acts of torture or abuse. 



Those who know Gonzales describe him as a pleasant person. Yet in his institutional
roles, he and his colleagues have paved the way for the suppression of
civil liberties, the brutal interrogation of prisoners, and a war of aggression
—acts that violate international law and the U.S. Constitution. 



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Roberto J. González is associate professor of anthropology at San Jose
State University. His most recent book is
Anthropologists in the Public
Sphere: Speaking Out on War, Peace, and American Power
(2004).