A report released Tuesday by the Justice Department has documented the Bush administration’s unprecedented -- and illegal -- effort to politicize the ranks of the agency’s prosecutors and civil service employees with conservatives and true believers in the religious right’s agenda.
Under then-Atty. Gen. Alberto R. Gonzales, a thirtysomething lawyer named Monica M. Goodling -- a graduate of a law school founded by Pat Robertson -- had virtual veto power over the appointment of U.S. attorneys, other prosecutors and immigration judges. Goodling, as the Washington Post reported, demanded that candidates “espouse conservative priorities and Christian lifestyle choices,” especially on issues such as abortion and same-sex marriage. The goal, according to the report, was to create a Republican “farm system” inside the Justice Department.
While Goodling was pursuing that mission, something not dissimilar was going on at the White House. According to an article by New Yorker staff writer Jane Mayer in the latest New York Review of Books, “President Bush, Vice President Dick Cheney and a small handful of trusted advisors sought and obtained dubious legal opinions [on national security] enabling them to circumvent American laws and traditions.” She details how they used these legal opinions to dramatically expand executive power.
When the next administration and Congress begin the urgent work of sorting out precisely how and why the Bush-Cheney regime systematically undermined the rule of law, there are a couple of things that ought to be kept in mind.
One is that their efforts were essentially ideological rather than partisan. That’s an important distinction, because although those involved in the White House campaign to subvert legal safeguards of all sorts obviously were Republicans, many Republicans working inside the administration -- some of them deeply conservative -- gave up their jobs rather than go along with the putsch.
Former Assistant Atty. Gen. Jack Goldsmith, who did heroic work trying to undo the mischief wrought by John Yoo, his predecessor in the Office of Legal Counsel, is one of those. His offense was to tell then-vice presidential counsel David Addington -- now Cheney’s chief of staff -- that, despite Yoo’s obliging opinions, U.S. law does not permit torture.
The Navy’s general counsel, Alberto Mora, was forced out of his job as well, for trying to stop the abuse of detainees by interrogators at Guantanamo. Deputy Assistant Secretary of Defense Matthew Waxman fought a losing battle to get the United States to abide by its moral and legal obligations under the Geneva Convention governing the treatment of prisoners.
In her new book, “The Dark Side,” Mayer drew particular attention to a group of FBI agents who refused to participate in the torture of Al Qaeda operatives in U.S. custody. It’s a safe bet that few of them are ACLU members, but most have now “retired and joined private security firms, taking vast amounts of wisdom about Islamic terrorism with them.”
An accurate record of this low, dishonest epoch in our history should also reflect the particular courage of the military lawyers -- many of them from the Navy and Marine Corps -- who sacrificed their careers demanding that their clients at Guantanamo receive a modicum of due process.
The article in the New York Review of Books also cites the example of a military prosecutor, Lt. Col. Stuart Crouch, who enlisted in the Marines as a military lawyer because a close friend was the copilot on the second hijacked airliner that flew into the World Trade Center on 9/11. Crouch was assigned to prosecute Mohamedou Ould Slahi, an Al Qaeda operative alleged to have aided the Hamburg cell that planned and carried out the attack on the twin towers. But when Crouch discovered that he was expected to put on a case based on information obtained through torture, he refused as a matter of conscience.
Others have been less scrupulous for reasons that do them even less credit than ideological fanaticism. Take, for example, former Pentagon general counsel William J. Haynes II. In a sworn statement, Air Force Col. Morris Davis -- the former top prosecutor in the Office of Military Commissions -- says he resigned after being pressured by Haynes to move forward with politically “sexy” prosecutions even though Morris believed the evidence against the defendants had been obtained by torture. Davis said he also told Haynes that a few acquittals at Guantanamo, if warranted, would send a message that the commissions sitting there were fair, just as the not-guilty verdicts against some Nazi defendants had done for the Nuremberg trials.
Haynes’ response was emphatic, according to Morris: “We can’t have acquittals! We’ve got to have convictions! ... If we’ve been holding these guys for so long, how can we explain letting them get off?”
At some point, the American people will demand a precise accounting of how and why their government and its officials behaved in this reckless, appalling fashion. That will require following the chain of command into the White House. When it happens, you can bet that Cheney, Rumsfeld, Addington et al will demand every protection of the law and insist on every comma of the due process they’ve derided as mere inconvenience.