The Gonzo Wisdom of Alberto Gonzales

The following pearls of wisdom were gleaned from a minor speech given by our dear Attorney General at the U.S. Air Force Academy, Colorado Springs, Colorado, November 20, 2006, modestly entitled "Regarding Civil Liberties and the War on Terrorism."

After a bit of flattery of the newly-fledged Air Force officers, Gonzo gives them a lesson in constitutional law, with a contrast-and-compare about "reasonable grounds" v. "probable cause."

1. "... in the United Kingdom, the arrest or search of a suspected terrorist is allowed if law enforcement “reasonably suspects” the person to be a terrorist or to possess “anything which may constitute evidence that he is a terrorist.”

"This reasonable suspicion standard is a lesser standard than the probable cause standard required under the Fourth Amendment of the U.S. Constitution. The terrorism suspect can be detained in the United Kingdom for up to 28 days, and the reviewing official still does not need to find probable cause–only that there are reasonable grounds to believe that detention is necessary to obtain relevant evidence." (My emphasis)

UK's practice bad, USA's good because...

"I want to be very clear about the facts here: the Terrorist Surveillance Program does not invade anyone’s privacy, unless you are talking to the enemy in this time of war. It targets only international communications in which we have *reasonable grounds to believe* that one party is a member or agent of al Qaeda or an affiliated terrorist organization. The TSP is lawful. The President established the Program under both the authority given to him by Congress when it passed the Authorization for Use of Military Force in the wake of the 9/11 attacks, and by his authority under the Constitution."

Oops. Gonzo is admitting that we use the same unconstitutional standard as the UK. First he says that constitutional probable cause must apply, then he says we just go ahead and use "reasonable" standards anyway, voiding his argument. And how does Gonzo know who the hell we're talking to in the first place, unless he's tapping every phone in the United States ... oh, yeah, I forgot: the Terrorist Surveillance Program. And you can forget 28 days; try three-plus years in the case of the boys at Guantanamo, with no release in sight.

"Some people will argue nothing could justify the government being able to intercept conversations like the ones the Program targets. Instead of seeing the government protecting the country, they see it as on the verge of stifling freedom."

Very few people argue that, actually; in fact, no one of any standing makes that argument at all. What they do argue is that the people running the program don't actually obtain the warrants the Program - and Constitution - mandates. Strictly speaking, the NSA is authorized to monitor calls originating in "foreign countries" after obtaining a warrant, and no domestic telephony whatsoever. On the other hand, the President is on record as stating that he doesn't need a goddamn warrant, because he's Commander in Chief in a time of war. And just who the hell declared this "war"? An AUMF is not a declaration of war; by the way, Congress can call the war off.

"But this view is shortsighted. Its definition of freedom – one utterly divorced from civic responsibility – is superficial and is itself a grave threat to the liberty and security of the American people."

Whoa!

"As Justice Robert Jackson remarked in the case Terminiello v. City of Chicago, “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” "

There you have it: the US Constitution is a suicide pact, written by a bunch of impractical suiciders who had just finished a longish period of bloody revolutionary war, and probably couldn't think straight.

2. "The fact is that the Patriot Act was born of a well-established criminal justice and national security structure as well as vibrant bi-partisan debate in Congress, both upon its establishment and its renewal."

Wrong, Gonzo; the Act was introduced onto the floor of the House ("on the House side, the version approved by the Judiciary Committee with some changes prompted by civil liberties concerns was replaced by a different version in the middle of the night") and was passed with a voice vote less than thirty minutes later. Not a single Representative or Senator had read the entirety of the 315 page bill. There was minimal debate in the Senate and none at all in the House.

3. "The Patriot Act does not authorize the government to go into your house or read your mail without probable cause and a warrant."

Wrong again, Beanie-boy. Instead, it authorizes self-written National Security Letters, no-knock B&Es, monitoring of your library reading habits, and muzzles the accused, and we all know how well that has worked out. Repeating, it authorizes "reasonable suspicion" rather than probable cause.

4. "The United States has no desire to be the world’s jailer, but we do have an obligation to both our own troops and to the soldiers of our allies to detain and remove terrorists from the battlefields of this conflict."

Fair enough, but wait...

5. "We have put in place extensive procedures to ensure that the individuals we detain at Guantanamo are, in fact, enemy combatants."

OK, which is it, 'terrorist' or 'enemy combatant'? Seems to me that armed combatants on battlefields are soldiers. Soldiers are covered by the Geneva Conventions on the Conduct of War. The Taliban is the indigenous militia of Afghanistan, and its members are soldiers, some of whom may be al Qaeda, but the others that aren't can't be terrorists, by definition. On the other hand, civilian "insurgents" are resistance-fighters legally justified in attacking foreign troops occupying their country. Gonzo is painting everybody with the same brush.

6. "The United States does not engage in torture, and consistent with our law and practice, no evidence obtained by torture shall be admitted at a military commission proceeding."

Har. See below.

7. "Al Qaeda has committed acts on a scale that transcends mere crime, as recognized by NATO immediately after the attacks of September 11th. Their crimes are therefore nothing less than war crimes. Given the magnitude of the atrocities al Qaeda has committed, there can be no comparison between the crimes of its members and that of common civilian criminals. "

Red herring. Nobody is saying that al Qaeda commits civilian-type crimes, although - forgive me - crashing an airplane or two into a building hardly compares to, oh, I don't know, how about dropping a nuclear bomb on Hiroshima or fire-bombing Dresden? But if, as you say, we are at war, then these are war crimes, and again, are subject to Geneva and UCMJ-type laws, not "no-hearing hearings". For the record, General James "Raid on Tokyo" Doolittle once remarked that, had the US lost WWII, he probably would have been put on trial as a war criminal. Nuremberg rules apply, and trump US practice. (For an interesting history on the evolution of the tactic of indiscriminate bombing of civilians, see here.)

8. "...today’s war is fought at home, too..."

Here we have the key, the very essence, of Gonzo's wisdom; if the war is on our home ground, it stands to reason that the rules of that war must be applied to the domestic front. Thus, enemy combatants can and are being defined as such by the President under the Military Commissions Act of 2006, and the Warner Appropriations Act of 2007.

So the President and Gonzales - not forgetting such luminaries as Irving Kristol, Norman Podherotz, John Yoo and the entire claque of Neoconservative authoritarian thugs - maintain that anyone, citizen or no, can be eavesdropped upon by the NSA and other agencies; can be detained and charged (or not) as a war criminal/terrorist by the government; and anyone can be rendered to a foreign country for interrogation using dubious "advanced techniques," on the President's sole authority.

Bear this in mind: Gonzo brings us not just the wisdom gleaned from his years of legal experience as personal weasel/consigliere to George W Bush, but the hopes and dreams of the entire Bush administration; the US Constitution is "just a goddamned piece of paper," and quite possibly, "a suicide pact."

Update: A very strong article about the subversion of the rule of law by the executive branch - posted today on DailyKos.com - and its endorsement by the Wall Street Journal is here.

Revised and updated - 5/03/2007