Torture and Death


A front-page November 12 New York Times story by Elisabeth Bumiller and Neal Lewis went deeper into the president’s choice for attorney general than I’d seen anywhere else. The master planner, Karl Rove, has decided that by sending Alberto Gonzales to succeed John Ashcroft, in the event of William Rehnquist’s retirement, Bush “could then nominate a conservative favored by his political base.”

“It’s a thank you to the right for the election,” said one Republican adviser to the White House quoted in the Times article, “and they think they need to strike now in the post-election glow.”

That having been done, Gonzales’s “tenure as attorney general would allow him to demonstrate his reliability to conservative leaders,” so that he could then eventually be nominated to the Supreme Court. (As a judge in Texas, he was considered a moderate.)

During the presidential debates, while John Kerry proclaimed a litmus test for his Supreme Court choices—the judicial nominee must support Roe v. Wade—the president piously pledged no litmus test. Under the Rove plan, however, no one gets on the Supreme Court during the next four years who significantly alienates Bush’s hardcore conservative base. This is a litmus test that strips the Supreme Court of its independence under the separation of powers. Franklin D. Roosevelt tried this crude politicalization of the Court with his Court-packing plan to get more justices behind the New Deal. He failed. Will Senate Democrats allow Bush and Rove to succeed, starting with the Rove plan for Gonzales?

The auguries now are that while Alberto Gonzales will get some tough questioning in January from Democrats on the Senate Judiciary Committee, he will be confirmed by that body and will not be filibustered on the floor of the Senate since the Democrats are still licking their wounds and don’t want to appear to be an “obstructionist” minority party so soon.

Nonetheless, the citizenry ought to know much more about Alberto Gonzales as a possible member of the Supreme Court. The general descriptions of him now are that he is “moderate” in his views and, as Sam Gwynne of the independent Texas Monthly tells the Financial Times, “a very gentle, mild person. . . . Everybody likes him.”

Last week I detailed here how this gentle soul advised his close friend, the president, to whom he is gratefully loyal, and other officials of the administration on how to evade American and international law to permit the torture of prisoners at Guantánamo and elsewhere.

But there is also another dimension to Gonzales’s concept of justice that Democrats on the Judiciary Committee should explore.

In the July–August 2003 Atlantic Monthly, Alan Berlow wrote a long, carefully documented article, “The Texas Clemency Memos,” which told of the role of Gonzales, then legal counsel to Texas governor George W. Bush, in deciding the fate of prisoners on death row, including the mentally retarded. Even then, Berlow noted that Gonzales was “widely regarded as a likely future Supreme Court nominee.”

I expect that many Americans have forgotten that during his tenure, Governor Bush was the chief executioner in the United States. As Alan Berlow wrote: “During Bush’s six years as governor 150 men and two women were executed in Texas—a record unmatched by any other governor in modern American history. Each time a person was sentenced to death, Bush received from his legal counsel a document summarizing the facts of the case, usually on the morning of the day scheduled for the execution, and was then briefed on those presumed facts by his counsel.

“Based on this information, Bush allowed the execution to proceed in all cases but one.” Berlow says the first 57 of these summaries were written by Gonzales and were Bush’s primary sources of information in deciding whether someone would live or die. “Each is only three to seven pages long. . . . Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of the defendant’s claims, there is no conceivable rationale for the governor to revisit that claim.”

As I and other journalists reported during Bush’s governorship, the Texas appeals courts notoriously championed, as they still do, the death penalty. (This is particularly well documented in The New York Times, November 16.) Gonzales, by his mechanical reliance on lethal decisions by those courts, ignored, as Alan Berlow notes, “one of the most basic reasons for clemency: the fact that the justice system makes mistakes.”

The likely next attorney general did not want his tombstone summaries to be made public, but Berlow obtained a ruling from the Texas attorney general that they were not exempt from the state’s Public Information Act.

Gonzales refused to be interviewed for the Atlantic Monthly article. I would expect that a public official of conscience would have wanted to reply to Berlow’s conclusion that “in these documents, Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.” (Emphasis added.)

One of the cases in the article was that of “Terry Washington, a mentally retarded thirty-three-year-old man with the communication skills of a seven-year-old.” In his three-page report on Terry Washington, Gonzales never mentioned that Washington, as a child, along with his 10 siblings, was “regularly beaten with whips, water hoses, extension cords, wire hangers, and fan belts.” And this was “never made known to the jury, although both the district attorney and Washington’s trial lawyer knew of this potentially mitigating evidence.” Just hours after Gonzales’s brief report to Bush, Washington was executed.

In the July 20, 2003, Washington Post, Peter Carlson wrote, “It’s hard not to conclude that both Gonzales and Bush were rather callous, even cavalier, about the most profound decision any government official can make—the decision to kill another human being.” And now Gonzales will be our chief law enforcement officer.