News Analysis

Attorney General John Ashcroft has departed. Some see his designated successor, presidential legal advisor Alberto Gonzales, as an improvement, perhaps because he is a Mexican-American from humble roots, or because he has been attacked by the religious right for not being an anti-abortion extremist.

But the ACLU, the Center for Constitutional Rights and others warn that Gonzales has functioned more like a Mafia counselor, a consigliere, than an interpreter of the law. Rather than giving Bush honest and balanced opinions, Gonzales looks for loopholes that would allow him to get around the law.

After graduating from Harvard Law School, Gonzales became Texas secretary of state and an important legal advisor to Gov. George W. Bush. Bush’s administration in Texas was noted for the very heavy use of the death penalty (152 executions), and Gonzales has been accused of providing Bush only with information that would support executions, and keeping back information — even evidence of innocence — that might have led to commutation.

The administration brags that Gonzales played a liaison role between Texas and Mexico. One result of Gonzales’ advice has been the condemnation of the United States by the World Court for violations of the Vienna Convention. This important international agreement, to which both the United States and Mexico are signatory, requires that nations inform each other’s consulates when they arrest each other’s citizens. Mexican citizens arrested in the United States are routinely denied this right.

In 1997, Gonzales advised Gov. Bush that Texas did not have to obey the Treaty of Vienna, because Texas had not signed it! (Individual states have no right to repudiate international treaties signed by the U.S. government.) So the Mexican government successfully sued the United States in the World Court. By that time, Bush was president and Gonzales had risen from Texas secretary of state to White House legal advisor, and the World Court ruling has been contemptuously ignored.

Most controversially, Gonzales appears to have been the main author of position papers which:

• Authorize torture. Gonzales’s 2002 memos suggested that prohibitions on the torture of prisoners do not apply to illegal “enemy combatants.” They also redefine torture so as to exclude many brutal interrogation techniques used at Abu Ghraib. According to Gonzales, simulated drowning, threatening attacks by dogs, or sexual humiliation are not torture unless they cause “injury such as death [sic], organ failure, or serious impediment of body functions.”

• Repudiate the Third and Fourth Geneva Conventions for prisoners captured in Afghanistan and sent to Guantanamo. Some of the provisions of these conventions on treatment of prisoners of war were seen by Gonzales as “obsolete” or “quaint.” Gonzales advised that the declaration by Bush that the conventions do not apply means that violations do not constitute war crimes, a stance that no reputable legal scholar accepts.

• Establish “military commissions” to try enemy combatants. Such efforts were recently declared by even the right-wing Supreme Court to be unconstitutional as originally envisaged.

There are many other problems with Gonzales, including financial relationships with Enron and Halliburton. But the main worry is that he will continue the Ashcroft legacy of eroding due process rights and attacking the principle of separation of powers. As attorney general, he will continue to seek ways to weaken the Constitution rather than enforce it.

Emile Schepers is a longtime activist for civil and constitutional rights. He can be reached at