To his nomination as the first Hispanic attorney general of the United States, Alberto Gonzales brings an inspiring personal story and a blemished public record. His rise from immigrant poverty to the heady heights of power testifies to enduring American opportunity. Yet his performance as legal counsel in Austin and Washington has consistently eroded traditional American respect for the rule of law and the rights of the accused.
The historic elevation of Gonzales could ignite a long overdue national debate on how we treat those accused and convicted of capital crimes -- in particular, those whose guilt remains in doubt. At some point in the ineluctable rise of his public standing -- already he is being discussed as the next Supreme Court Justice -- Gonzales will have to answer for his alleged negligence in handling such cases years ago, when he served as counsel to then-Gov. George W. Bush.
As White House counsel, Gonzales has aggressively promoted policies that undermine civil liberties and international law on the treatment of prisoners. Although the soft-spoken lawyer usually remains in the background, as befits a Bush loyalist, he has left no doubt about his scorched-earth attitude toward prosecuting suspected terrorists and "enemy combatants": Jail them first and charge them later, or maybe never. In a now notorious January 2002 memo, he mocked the Geneva Convention and argued that the war on terror had rendered "obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." Due to that quote, he will bear historic responsibility for the lasting damage done to American prestige by the awful abuses at Abu Ghraib prison.
Yet despite the continuing criticism of his role in legitimizing brutality and undermining the Bush administration's adherence to the Geneva Convention in the treatment of prisoners, Gonzales is almost certain to be confirmed by the Senate next year without serious trouble -- and not only because of the heavier Republican majority. Democratic senators respect Gonzales and regard his comparative moderation as at least a marginal improvement over the fervent extremism of John Ashcroft. (An active Catholic, he probably won't be ceremonially anointed with Crisco oil before assuming his new office, as Ashcroft once was.) With Hispanic voters acting as a "swing" bloc in national elections, the Democrats won't be eager to filibuster Gonzales, which would be the only way to forestall his confirmation. They will be reluctant to fall into the kind of ethnic trap set by Bush's father when he nominated Clarence Thomas to the Supreme Court.
That doesn't mean Democrats on the Senate Judiciary Committee such as Ted Kennedy and Pat Leahy won't demand answers from Gonzales about the "quaint" memo, enemy combatants, and the most repressive aspects of the PATRIOT Act, which he helped draft. (If true to their professed libertarian values, Republicans should also question Gonzales sharply, but that might be expecting too much.) Some senators will question him closely about allegations first explored by journalist and author Alan Berlow last year in the Atlantic Monthly. After examining confidential memoranda on death penalty pleas that Gonzales prepared for Bush when he served as the Texas governor's counsel, Berlow excoriated Gonzales for his "clear prosecutorial bias." These brief memos were the basis for dozens of life-and-death decisions by Bush during those years. His counsel's approach to those choices seems to have been as casual and dismissive as that of the governor himself.
According to Berlow, "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." The final phrase in that sentence is italicized because it is the actual evidence of innocence -- ignored or minimized in one or more cases by Gonzales -- that he will someday have to confront.
Advances in criminology and forensic science have forced even politicians and experts who favor the death penalty to admit that innocent men and women have been convicted of capital crimes -- and in some cases wrongly executed. The likelihood that such gross injustice occurred in Texas, where scores of convicts suffered execution while Bush was governor, is high. Research by death penalty opponents is continuing on a number of specific cases where the chances of error appear strongest, not only in Texas but across the country. At least one such case, however, is among those that Gonzales once briefed to Bush.
Dramatic evidence proving that the state of Texas killed an innocent man probably won't emerge during the Gonzales confirmation hearings. It would be better for that moment to occur outside the Senate's partisan atmosphere. Cutting to the very legitimacy of our criminal justice system, the execution of the innocent is an issue that ought to transcend party loyalty. Perhaps we can even hope that when Gonzales and Bush finally confront the consequences of their own negligence, they will support the reforms needed to protect American society from state-sanctioned murder.