Stone: Gonzales Could Have Learned from Predecessors

History lessons never learned; Legacy of 3 predecessors could have taught Gonzales how to serve honorably
Geoffrey R. Stone
Chicago Tribune
August 29, 2007

"The first thing we do, let's kill all the lawyers."

Alberto Gonzales' sorry tenure in the Bush administration would seem to give credence to Shakespeare's oft-cited incitement against the legal profession.

The primary responsibility of the attorney general is to uphold the Constitution and laws of the United States in a fair and evenhanded manner. In failing to comprehend this responsibility, Gonzales compromised himself, his office, the Constitution and, ultimately, the president who appointed him.

The responsibility every attorney general owes the nation is to raise hard legal and constitutional questions whenever a president is tempted to overreach the limits of his authority. Gonzales, however, chose to function more like President Bush's personal legal strategist, doing everything in his power to justify Bush's apparent desire to authorize torture, deny detainees access to the writ of habeas corpus, order unlawful electronic surveillance and institute legal proceedings that defy due process of law.

There is no excuse, other than cronyism and personal weakness, for Gonzales' confusion about his appropriate role and, in point of fact, he and future officeholders could learn much from the extraordinarily disciplined and principled actions of some of his predecessors who also served our nation in perilous times.

After the outbreak of World War II, Atty. Gen. Robert Jackson warned the nation's prosecutors that "times of fear or hysteria" have often resulted in cries "for the scalps" of those with dissenting views. He exhorted his U.S. attorneys to steel themselves to be "dispassionate and courageous" in dealing with "so-called subversive activities."

After Franklin Roosevelt appointed Jackson to the U.S. Supreme Court, he was succeeded as attorney general by Francis Biddle. On Dec. 15, 1941, Biddle reminded the nation that in time of war, "hysteria and fear and hate" run high, and "every man who cares about freedom must fight to protect it for other men" as well as for himself. Even when Roosevelt pressured his attorney general to prosecute those who criticized his policies, Biddle resisted. Later, when the public began to call for the wholesale internment of individuals of Japanese descent, Biddle furiously opposed such a policy as "ill-advised, unnecessary and unnecessarily cruel."

In a face-to-face meeting with Roosevelt, Biddle told the president that such a program could not be justified "as a military measure." Although Roosevelt overrode Biddle's objections largely for political reasons, he later rightly observed that the episode had shown "the power of suggestion which a mystic cliche like 'military necessity' can exercise." He added sadly that the nation had missed a unique opportunity to "assert the human decencies for which we were fighting."

In 1971, the public began to learn that the FBI, the CIA, the National Security Agency and the Army had engaged in a widespread program of investigation and secret surveillance of Vietnam war protesters in an effort "to expose, disrupt and otherwise neutralize" the anti-war movement. A congressional committee found that the government, "operating primarily through secret informants," had "undertaken the secret surveillance of citizens on the basis of their political beliefs," and that the FBI had "developed over 500,000 domestic intelligence files" on public officials, journalists, entertainers, professors and ordinary citizens.

In the face of such revelations, and in his role as attorney general, Edward Levi created stringent guidelines that reiterated and reaffirmed the rights of all Americans by clearly and carefully circumscribing the investigative authority of the FBI. The "Levi guidelines" expressly prohibited the FBI from investigating, discrediting or disrupting any group or individual on the basis of protected 1st Amendment activity. These guidelines were rightly hailed as a major advance in law enforcement and a critical step forward in protecting the rights of Americans against overzealous and misguided government officials. Gonzales helped evisce