On Alberto Gonzales’ Resignation (Part 1)

Some initial thoughts on the resignation of Alberto Gonzales from his position as Attorney General of the United States:

Why wasn’t he fired? The President needs to make it clear that he fired Gonzales, not that Gonzales chose to resign. If the decision is left to Gonzales, then the President is not the "decider" that he says he is. The President shows himself to lack the courage to make the hardest — and most noble — decision: the decision to separate himself from the incompetence of Gonzales, and the invalidity of his perception of government in the United States, despite years of close friendship.

No doubt in my mind that the President lacks this courage.

Who will replace Gonzales as AG? Who cares?! The news heads are all talking about who will be replacing Gonzales. This is wrongly focused. And the Democrats who run the Senate must not focus on who the replacement is. Rather, they must — today, now — set the criteria by which they will decide their confirmation.

These criteria must, at minimum, be:

  1. Reject the principle of the unitary executive that Gonzales (and Ashcroft before him) propounded. This principle is antithetical to the Constitution and must be rejected by the nominee. If not, reject the nominee.
  2. Reject the validity of torture of prisoners of war that Gonzales famously embraced. The President has said that "the United States does not torture", but that same President embraced and defended an AG who says torture is legitimate. Torture as a practice must be something the AG nominee must agree to prosecute vigorously; the Gonzales "torture memo" must be rejected explicitly by the nominee. If not, reject the nominee.
  3. Accept the legal constraints imposed by the Geneva Conventions, which Gonzales characterized as out-of-date and "quaint". Under Gonzales’ tutelage, the President adopted practices that violate the Conventions and, in so doing, violate US law. The AG nominee must reject Gonzales’ characterization, and must embrace the validity and applicability of the Geneva Conventions to our current and future war. If not, reject the nominee.
  4. Reject the "war tribunal" practices that Gonzales promoted and the President put into effect in Guantanamo. These practices violate criminal process and Constitutional protections. The AG nominee must accept the primacy of the Constitution over such extra-legal, extra-judicial practices. If not, reject the nominee.
  5. Endorse the singular authority of Congress to declare war and raise armies, as the Constitution provides. By endorsing the Constitution, the AG nominee rejects the claim that the President may, under any circumstances, declare war or raise armies. If the AG nominee cannot endorse this Constitutional provision, reject the nominee.
  6. Reject the principle that the President can enforce part of, but not all of, a law passed by Congress. Gonzales has endorsed and encouraged the President to issue signing statements declaring that he will not enforce singular provisions of a law, most notably, any portion of a law that requires the Executive branch to report regularly to Congress on the implementation of the law. This is not a valid authority of the President and the AG nominee must reject that principle. If not, reject the nominee

There are many more criteria…but the point is, it doesn’t matter who the nominee is. It matters what the nominee believes about the authority of the Constitution as the supreme law of the land.

…more to come…

 

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