By Brian Friel
March 3, 2006The Senate confirmed Alberto Gonzales as the 80th attorney general of the United States on February 3, 2005, in a contentious 60-36 vote. Many of the senators who opposed him questioned whether he was too close to the president to be able to serve effectively as the nation's top law enforcement officer. George W. Bush is, after all, singularly responsible for Gonzales's rise through government.
After Gonzales made partner at the Houston law firm Vinson & Elkins, then-Gov. Bush tapped the 39-year-old lawyer in 1994 to be his general counsel. Bush subsequently promoted Gonzales to Texas secretary of state, appointed him to the state Supreme Court, and finally brought him to the White House as general counsel in 2001.
Immediately after the 9/11 attacks, Gonzales began helping to craft a host of legal interpretations granting the president very broad powers -- unconstitutionally broad, according to many critics. Bush began his second term by choosing Gonzales to replace the sometimes independent-minded John Ashcroft as attorney general.
On the afternoon of Gonzales's confirmation, the new attorney general and the president were thousands of miles apart. Gonzales spent most of that day packing up his West Wing office for the move down Pennsylvania Avenue to the Justice Department, while Bush was touting his Social Security proposal in Montana and South Dakota.
The two spoke by phone after the Senate vote; then Gonzales went to the Roosevelt Room, where Vice President Dick Cheney swore him in. That evening, Gonzales and aides loaded up some Suburbans and headed to Justice. Gonzales recalls, "I remember walking into the office, and it was pretty bare, and thinking 'OK, this is it.' "
Since then, Gonzales has fulfilled the expectations of both his supporters and his doubters. In Gonzales's first year as attorney general, his public image has been shaped by his vigorous defense of Bush administration positions. He helped to rally support for Bush's successful Supreme Court nominees, John Roberts and Samuel Alito, and he defended the unsuccessful one, Harriet Miers, before she withdrew from consideration.
Gonzales has lobbied for reauthorization of the USA PATRIOT Act, which the Bush administration pushed through Congress four years ago to expand federal power to pursue suspected terrorists. And he has defended Bush's policies on detention, torture, and warrantless wiretapping as wartime protections that are not only essential but constitutional.
To his backers, Gonzales is a quiet, hardworking attorney general notable for his open management style and his commitment to the administration of justice and to the war on terrorism.
To his critics, Gonzales is a Bush yes-man who never really left the White House and who continues to front for a commander-in-chief intent on illegitimately expanding his powers at the expense of civil liberties and in disregard of the legislative and judicial branches. Gonzales seems to have no agenda of his own, detractors say: He appears content to serve as the president's defense attorney rather than as the nation's top cop and prosecutor.
"What will be the legacy of Alberto Gonzales?" Anthony Romero, the American Civil Liberties Union's executive director, asked rhetorically. "Will he be remembered in history books as an apologist of the Bush policies on torture and illegal spying, or will he be known as an attorney general of sufficient independence to deal with questions of some of the most vexing constitutional issues to confront any attorney general?"
Gonzales contends that his friendship with Bush makes him a better advocate for the rule of law within the executive branch.
"My responsibility is to ensure that the laws are enforced, that everyone in the country receives justice under the law -- independent of my relationship with the White House, independent of my relationship with the president of the United States," he told National Journal. "So when people talk about the fact that I'm too close to the -- some people say that I may be too close to the president -- I think having a good relationship with the president is a good thing for the department.... When a friend tells someone, 'No, you can't do that,' you're much more likely to listen to that and to accept it. I've got that kind of relationship with the president.... It makes me much more effective as attorney general."
Different From All the Rest
After a first term in which Ashcroft clashed repeatedly with the White House, Bush reached into his tight circle of loyalists for his next attorney general, just as he reached into that circle for a secretary of State who would be less of a free agent than Colin Powell had been. Bush dispatched his domestic policy adviser, Margaret Spellings, to take over another first-term trouble spot, the Education Department.
More senators opposed the confirmation of Condoleezza Rice than had voted against any other nominee for secretary of State since 1825. Yet she and Spellings had relatively smooth sailing in the Senate compared with Gonzales. Like other Cabinet secretaries, the attorney general is expected to advance the president's policy agenda, but the job description also includes investigating and prosecuting any law-breaking colleagues, up to and including the president.
"The attorney general is the one Cabinet member who's different from all the rest," said Eric Holder, who was a deputy attorney general during the Clinton administration. "The attorney general serves first the people, but also serves the president. There has to be a closeness at the same time there needs to be distance." Holder is now with the Washington law firm Covington & Burling.
Attorney General Janet Reno, Holder's Justice Department boss, did not know President Clinton before he interviewed her for the job. Reno went on to appoint independent prosecutors to investigate the Clinton White House, moves that ultimately led to the president's impeachment. Reno's strained relationship with the White House reduced Justice's influence within the administration.
Similarly, Ashcroft, who had been in the Senate until losing his 2000 re-election bid, did not know Bush well before being nominated to be attorney general. Although Ashcroft promoted an expansive view of the president's powers for the war on terror, in internal discussions he never shied away from playing devil's advocate, said his former spokesman, Mark Corallo.
"He was always prepared to take an unpopular position within the Cabinet," Corallo said. "He did not think his role was to find a way to say yes. The most important thing when you are a lawyer, you have got to understand it's not your job to figure out a way to make something that isn't going to fly, fly. That was never John Ashcroft. He's not the kind of guy who would sit in an interagency meeting and would volunteer to figure out a way to get it done."
The tension between serving two masters -- the Constitution and the president -- defined the tenures of many of Gonzales's predecessors, from Robert Kennedy, who was attorney general in his brother's administration, to John Mitchell, who was a campaign manager for Richard Nixon before -- and after -- serving as Nixon's attorney general. President Reagan appointed two confidants to the attorney generalship -- first his personal lawyer William French Smith, and then his close White House adviser Edwin Meese.
Nancy Baker, the author of Conflicting Loyalties: Law and Politics in the Attorney General's Office and a professor of government at New Mexico State University, categorizes attorneys general as either "advocates" or "neutrals." Advocates, exemplified by Kennedy and Meese, use the office to aggressively promote the president's agenda, their own pet projects, or both.
Neutrals tend to be apolitical and to focus on the Justice Department's independence or professionalism. Although a Reagan friend, Smith fit that mold. So did Edward Levi, the nonpartisan University of Chicago president whom President Ford appointed to restore public faith in a Justice Department sullied by the Watergate years.
The ACLU considers independence the hallmark of good attorneys general, and by any measure, Gonzales certainly isn't neutral about Bush's agenda. "Attorney General Gonzales has displayed a shocking lack of independence," contends ACLU Washington Legislative Director Caroline Frederickson. "He's stuck by the president. He doesn't deviate."
Other observers see the attorney general's job as more of a balancing act. Dick Thornburgh, attorney general under both Reagan and George H.W. Bush, said, "Part of the responsibility is to ensure that every agency, including the White House, acts within the law. But the attorney general is part of the executive branch, and thus the attorney general is quite properly an advocate for the executive branch. It's a job that requires some fine judgments."
A Lieutenant in the War on Terror
Between advocating for renewal of the PATRIOT Act and defending the National Security Agency's warrantless wiretapping program, Gonzales spent much of his first year explaining the Bush administration's rationale for exercising presidential powers far broader than its critics -- and even some of its allies -- think the Constitution allows. Gonzales argues that being at war justifies his actions -- and those of the president.
In his interview with National Journal, Gonzales pointed to Abraham Lincoln, Franklin Roosevelt, and British Prime Minister Winston Churchill as role models. "You can see their resolve, their absolute determination, and their commitment to preserve the country," he said. "I always admire very much people -- presidents and leaders -- during wartime, because it is the experience I am going through now."
Viewing the war on terror as akin to such titanic struggles as the Civil War and World War II, Gonzales sees Bush as thoroughly justified in asserting extraordinary powers. "As attorney general," he said, "you've got to stand there and say, 'Yes, you can do this; no, this is not allowed under the Constitution.' But you also have to understand that circumstances sometimes allow you to take certain kinds of actions that may not be permitted in normal circumstances."
Even Gonzales's friends concede that his performance as attorney general is, as Jim Pasco, executive director of the National Fraternal Order of Police, puts it, "extraordinarily deferential to the president." Pasco added, "He does not consider himself the chief law enforcement officer. He considers the president the chief law enforcement officer and, in that case, he is the deputy."
In response to such views, Gonzales said, "History will be the judge as to whether or not all the decisions made were appropriate, but what I can tell you is, we're focused on preserving our country." The attorney general's sense that the nation is fighting for its very survival is perhaps heightened by his daily routine.
On a typical weekday, Gonzales gets to his office at the Justice Department's Constitution Avenue headquarters at 6:15 a.m. He spends an hour going through briefing materials, then heads over to FBI headquarters for a 30-40-minute intelligence update on potential terrorist threats to the nation. Depending on the threats' perceived seriousness, he might head over to the White House to discuss them with officials from intelligence agencies. Gonzales thus begins each day confronting the challenges of the war on terrorism and the urgency of preventing a repeat of the 9/11 attacks -- or worse.
Last month, the attorney general grounded his most public defense of the administration in its war on terror. Appearing before the Senate Judiciary Committee on February 6 to defend the controversial NSA program, Gonzales invoked various statutes, the Constitution, and several court rulings in contending that, despite restrictions in the Foreign Intelligence Surveillance Act, the president has the authority to eavesdrop without a warrant on U.S. citizens who are in contact with suspected terrorists abroad.
Four of the panel's 10 Republicans, including Chairman Arlen Specter of Pennsylvania, don't buy Gonzales's legal analysis. Neither does any of the committee's eight Democrats. Specter has drafted legislation to require the FISA court to review the legality and constitutionality of the warrantless eavesdropping.
Many Gonzales critics argue that the NSA's eavesdropping is only a symptom of a much larger malady -- that the attorney general is allowing the president to use the war on terror as an excuse to drastically curtail Americans' basic freedoms.
"The administration's view is that the entire world, including every inch of U.S. territory, is akin to a battlefield and that, therefore, if the president decides that he wants to order an arrest or search, then warrants are not necessary," said Tim Lynch, a legal analyst at the Cato Institute. "The real controversy is, is the United States of America a battlefield or not?"
The Quiet Man
Despite his wholehearted defense of the administration's policies, Gonzales is not personally the lightning rod that Ashcroft was. Broadsides blasting the president's expansive interpretation of his power now tend to be aimed at Bush, not his attorney general. In contrast, early foes of the PATRIOT Act often trained their fire on Ashcroft, perhaps because of his distance from Bush, his conservative Senate record, or his outspoken style.
Ashcroft grabbed headlines -- by, for example, forcefully pushing the PATRIOT Act, draping a partially nude statue in the Justice Department's Great Hall, accusing Senate Democrats of helping terrorists, and beaming in from Moscow to announce the capture of suspected dirty-bomb plotter Jose Padilla.
Gonzales, by contrast, didn't make a media splash until the Judiciary Committee hearing at the tail end of his first year in office. And even then he didn't draw personal heat the way Ashcroft did -- or, for that matter, the way Reno did over her handling of the Waco shoot-out and the Cuban refugee Elian Gonzalez.
"There is nothing [controversial] like that in ... Year One of Gonzales," noted Washington lawyer Joseph diGenova, a former U.S. attorney and independent counsel. "That's good. It's pretty much been steady going. The only thing that comes close is the beginning of the discussion of the NSA wiretapping."
Gonzales is also seen as more of an extension of the White House than as his own man, and criticisms of legal policies that in Bush's first term would have targeted the attorney general are now directed at Bush.
Gonzales set the tone for a quiet year in addressing Justice Department employees on the day after his confirmation. "My style of management is basically one of listening," he told them. "I like to listen to people."
Rather than chart a new direction for the department, Gonzales said in a series of speeches that his priorities were basically those that Justice had emphasized since 9/11: preventing terrorism; reducing violent crime, especially crimes against children; controlling drugs; prosecuting human trafficking; and protecting victims' rights.
Throughout 2005, Gonzales announced indictments and successful crime sweeps. He pushed for reauthorization of the PATRIOT Act and established a number of task forces of Justice employees, FBI agents, and state and local law enforcement officials.
In the aftermath of Hurricane Katrina, he launched a task force to combat fraud in hurricane relief and reconstruction efforts. He helped his department's outposts on the Gulf Coast rebuild. "It wasn't unusual for me to speak with him every day," said James Letten, U.S. attorney for the Eastern District of Louisiana in New Orleans.
Gonzales, in fact, seems most comfortable with the person-to-person parts of his job, rather than with debates over constitutional questions and hot-button issues. He singles out as the highlight of his first year his Fourth of July trip to Iraq, where he thanked Justice Department employees and military troops for serving. "That was a remarkable journey for me," he said.
Throughout the year, Gonzales spent a surprising amount of time giving out awards and pats on the back to career civil servants at his department and to law enforcement officers, both in public ceremonies and in drop-by visits. "They were delighted that I would take the time to come by and see them and say hello and ask how they're doing," Gonzales said. "I would go in their offices and shake their hands, look at the pictures, ask about their families."
The son of migrant workers, the Texan from a place called Humble is more willing than Ashcroft was to meet with critics and outsiders. "He certainly listens," said the ACLU's Romero. "I very much admire his personal story, and I share a sense of accomplishment that we have a Hispanic in the highest post in the Justice Department."
But Gonzales's lack of a signature issue has not gone unnoticed. "It is hard to think, as I sit here, of examples of decisions that appear to be Gonzales making decisions on his own, as opposed to his status of defender of the administration and the White House," said Elliot Mincberg, general counsel for the liberal advocacy group People for the American Way. "His role doesn't seem that much different than his role serving as White House counsel, only now he has a much larger staff."
Ted Ullyot, Gonzales's chief of staff at Justice until October, said that Gonzales has consciously chosen to convey a message of continuity -- that the goals of Bush's first term, starting with the fight against terrorism, remain the goals of the Gonzales Justice Department.
"His priority is not making a name for himself; his priority is doing the job as attorney general," said Ullyot, now general counsel for the Connecticut-based company ESL Investments. "His whole focus is on carrying out the task, not on saying, 'I need to come up with a signature agenda and push it forward.' His humility in that respect may end up with people saying, 'I haven't seen his name out there much.' "
Even skeptics credit Gonzales with having smoothed relations between Bush's Justice Department and the outside world.
"He has clearly been more open to communication with Capitol Hill than his predecessor [was], though not sufficiently to address all the concerns of Republicans and Democrats on the Judiciary Committee, to be sure," said Jamie Gorelick, a partner with Washington law firm WilmerHale who was a deputy attorney general under Reno and a member of the 9/11 commission.
The Cautions of History
Because the Justice Department oversees so much controversial turf -- from civil rights to terrorism to abortion -- students of history say it is natural that attorneys general are controversial.
"None of the attorneys general are in the pantheon of national heroes," Thornburgh said. He recalled the 200th anniversary of the attorney general's office in 1989. All but one of the living attorneys general were there, including Herbert Brownell, one of President Eisenhower's appointees. Brownell told the audience, "Any attorney general who's popular isn't doing his job."
Cornell Clayton, a professor of political science at Washington State University, said that in the judgment of history, attorneys general "who become the mouthpiece for presidential claims of power don't enjoy the best reputations. Those who have been great attorneys general were those who were more willing to stand up to the president."
The most famous exemplar of that type of independence is Elliot Richardson, Nixon's third attorney general. (The first, John Mitchell, served time in prison for his involvement in the Watergate scandal; the second, Richard Kleindienst, was convicted of perjury.) In what became known as the Saturday Night Massacre, Nixon ordered Richardson to fire Watergate Special Prosecutor Archibald Cox. Richardson refused and resigned.
Richardson's deputy, William Ruckelshaus, resigned to avoid complying with Nixon's order. Nixon's solicitor general, Robert Bork, finally fired Cox.
John Ashcroft's reputation has received something of a boost in recent weeks from a Newsweek article describing his defiance of the White House over some aspect of the NSA spying program. According to the magazine, Ashcroft refused to recertify the program until tougher legal standards were placed on it. Gonzales confirmed that there had been a disagreement between Justice and the White House, but told Sen. Charles Schumer, D-N.Y., during the Judiciary Committee hearings that the clash was not about the warrantless wiretapping of international-to-domestic communications.
"To my knowledge, none of the reservations dealt with the program that we're talking about today," Gonzales said. "They dealt with operational capabilities that we're not talking about today."
Gonzales's own legacy may well depend on whether his friendship with the president ultimately benefits the nation. "The bottom line is how power is used," professor Baker said. "Attorneys general ultimately disserve their presidents when they forget their other duties to the Constitution."
By Brian Friel
March 3, 2006