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A 'War on Terror' Architect Departs

Authors: Lee Hudson Teslik, and Robert McMahon, Managing Editor
Updated: August, 28, 2007


The resignation of U.S. Attorney General Alberto R. Gonzales (AP) marks the departure of another Bush administration figure critical to mounting its post-9/11 “war on terror.” With the Democratic-majority Congress due to return next week, the move is likely to raise new questions over President Bush’s invocation of legal authority in prosecuting that war. Gonzales was at the forefront in planning this new kind of conflict, which he said emphasizes “constant pressure within a comprehensive strategy” against terrorist elements. The strategy has involved expanded warrantless surveillance of telephone and Internet lines, as well as gathering intelligence from financial and other records as authorized by the Patriot Act. Although the administration can point to an absence of terrorist attacks on U.S. soil since 9/11, Gonzales became enmeshed in complaints about overzealousness.

His departure also leaves concerns about the functionality of the Justice Department itself, which the Wall Street Journal says is in “disarray,” with a number of top positions held by officials in an “acting” capacity. CFR's Noah Feldman says the credibility of the department has been harmed because of the perception that it served as a “political wing” of the White House.

First as White House counsel and then as attorney general, Gonzales pressed to increase presidential authority, including over the domestic- spying program. He crafted policy for military war tribunals as well as limited the legal rights of hundreds of detainees held at Guantanamo Bay, Cuba. He asserted at a CFR briefing: “[W]e can be proud of the procedural protections the Department of Defense has afforded our nation’s enemies.” But the moves alarmed civil libertarians, who sued to challenge the measures, and some of the domestic surveillance efforts apparently triggered dissent (Jurist) within the intelligence and law enforcement communities.

The attorney general’s office has been at the heart of the tensions playing out among the executive, legislative, and judicial branches on the extent of a president’s powers at a time of war, especially one of unknown duration. In 2006, the Boston Globe reported that in carrying out the war on terror, Bush “quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the constitution.” But the attorney general has consistently defended Bush’s ability to expand powers in areas like domestic surveillance, saying he has balanced civil liberties with national security (VOA).

Gonzales also used the attorney-general post to defend Bush’s legal authorities with respect to international law—often focusing on the debate over procedures for detaining and trying terror suspects. As this Backgrounder notes, Gonzales argued the U.S. military could operate outside the Geneva Conventions on the treatment of detainees in wartime. He said the U.S. Constitution did not guarantee habeas corpus (SFChron)—the right to challenge one’s imprisonment in federal court—in all cases, defending the U.S. military’s right to hold terror suspects at the Guantanamo Bay detention facility with little or no access to standard legal procedures. In what was interpreted as a blow to the Justice Department’s authority, the U.S. Supreme Court’s 2006 Hamden v. Rumsfeld decision ruled that the Geneva Conventions apply to Guantanamo detainees and limit the U.S. military’s ability to hold terror suspects indefinitely without a trial. A recent column in the Economist defends the Justice Department’s role in a time of intensified national security, but questions whether Gonzales’s deference to the president and “lobotomized performances on Capitol Hill,” particularly during his recent defense of the dismissal of eight U.S. attorneys, have undermined the department’s authority.

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