Noah Feldman, CFR adjunct senior fellow and a professor at Harvard Law School, says the Department of Justice under Attorney General Alberto R. Gonzales was harmed “because of the perception that it functioned as a political wing of the government” in promoting Bush administration counterterror legislation. Feldman says Gonzales may have served to erode foreign perceptions of the U.S. Department of Justice as a quasi-independent body by so closely embracing the directives of the White House.
U.S. Attorney General Alberto R. Gonzales announced his resignation today, and will step down next month. What do you make of his tenure? Do you think, during his time, the role of the attorney general has shifted substantially?
It’s complicated. When you speak about the role of the attorney general, it implies something greater than just the way this attorney general did his job. This attorney general did his job in a way that was quite different from many previous attorneys general. Now, that doesn’t mean there’s a permanent shift in the role. But during Gonzales’s time in office, and because he came out of the White House counsel’s office, and even before that came out of a close personal relationship with the president, he was one of those attorneys general in history who really focused on serving the immediate interests of the president, over and above what you might call the institutional interests of the Department of Justice.
There’s a debate about how much independent interest the attorney general’s office ought to have, but that didn’t score very high on Gonzales’s list. I think you’d have to go back to Bobby Kennedy to find an attorney general who was as close with a president—and obviously he was his brother, so you can’t get a lot closer than that. What’s consistent is that Gonzales, each time the president sought something, he had a very great tendency to give the president exactly what he wanted.
There has obviously been this constitutional give-and-take between the executive branch and the judiciary. How much did Gonzales actually matter in that?
He mattered quite a lot, not because he formulated specific legal policies, but because he was a consistent player in what you might broadly call the executive power in the war on terror from its very beginning. He was involved as White House counsel, in the early stages, when the White House was seeking opinions from the Department of Justice, and also from the Department of Defense, with respect to the powers of the executive, with respect to detainees, and so forth. He was involved in that from the beginning, before he went to the attorney general’s job. He played a crucial role in formulating questions that stated exactly what it was that the White House wanted, and then speaking with it to make sure that those demands were, at least to some extent, carried through. And then of course he continued, when he crossed Pennsylvania Avenue and went over to the Department of Justice, he continued in that role of looking out for the president’s specific requests and interests.
Do you think the Justice Department has been substantially weakened by this, or will everything be wiped clean with a new administration?
The reputation of the Justice Department has been harmed. At least part of the Justice Department, the Office of Legal Counsel, or OLC for short, was always historically thought to be very strong in terms of having independent judgments about the constitutionality of executive action. Of course, the OLC always tries to find the interpretation that’s most favorable to the president, but it’s fair to say the perception is that they have tried to do so within the realm of what most lawyers would have considered reasonable decisions of constitutional law. The Department of Justice more broadly has also been harmed because of the perception that it functioned as a political wing of the government and didn’t pay as much attention to the legal technicalities that are actually the stuff through which we protect our rights. They can be called legal technicalities in a negative sense—that’s probably how a lot of people in the Bush administration thought about them—but they are there for a reason, when it comes to protecting our rights. So yes, the Department of Justice has suffered in its reputation, and I don’t think that will be restored overnight. The real issue is that, when one administration increases the politicization of a certain political agency, the next administration is always tempted to keep up that politicization, albeit often for different ends. So it will take time for the public to see if the next administration treats the Department of Justice as a less politicized entity.
We have about eighteen months left for the Bush administration, and for the new attorney general. On some of the critical issues—on the military tribunals, or domestic surveillance—do you think much is likely to change with the new attorney general? I suppose it depends a lot on who it is.
It matters hugely who it is. It’s too early to tell because the culture is typically set from the top. But one thing you can say with some confidence is that any attorney general is going to be dealing with the fact that the White House, and the central administration, is going to be dealing with an expectation of them getting on board, just as Gonzales did.
How does this play into foreign affairs, this whole episode?
The key question is the relationship of all this to the way we’re perceived abroad. It’s a delicate balance. Although the attorney general and the Department of Justice are part of the executive branch, and they serve the president, and they serve at his pleasure, historically it has been a big advantage to the United States in its foreign policy that the Department of Justice could say, “Look, we do things quasi-independently. We try to prosecute the people who we think are really guilty. We try to keep politics out of this as much as we realistically can. We represent the rule of law. Maybe the CIA [Central Intelligence Agency] or the Department of Defense are interested in grabbing people up, around the world. We’re the ones who say, ‘You can’t exactly do that.’”
To the extent that we’re weakened in the perception, as much as the reality, of the Department of Justice as an independent entity, that harms us in our foreign policy. It means that when other countries look at us, they are less likely to believe that we have someone in our system, a part of the government that is assiduously insisting on the rule of law. That’s the foreign relations content here. Obviously this wasn’t the most successful attorney generalship in terms of domestic justice, but in a way it was even more harmful from a perspective of foreign affairs.