In nominating Alberto Gonzales to be the next attorney general, President Bush has selected a man with a long record of giving him the kind of legal advice he wants. Unfortunately, that advice has not always been of the highest professional or ethical caliber.
Gonzales is perhaps best known for a controversial January 2002 memorandum to the president in which he argued that Geneva Convention proscriptions on torture did not apply to Taliban and al Qaeda prisoners, and that the conventions are, in fact, "obsolete."
This interpretation of international law, which many have linked to the abuses at the Abu Ghraib prison, will no doubt be a focus of confirmation hearings. Senators might also want to quiz Gonzales about a less well-known June 1997 memo involving another treaty, the Vienna Convention on Consular Relations. Written when Gonzales was counsel to then-Gov. George W. Bush, the memo puts forward the novel view that because the state of Texas was not a signatory to the Vienna Convention, it need not abide by the treaty. Or, put another way, Texas is not bound by Article VI of the Constitution, which states that U.S. treaties are "the supreme Law of the Land."
That memo was written to dismiss State Department concerns about the impending execution of a Mexican national whose rights under the convention had clearly been violated by Texas police. And it is on the subject of executions that Gonzales's most questionable legal writings may be found.
Bush approved 152 executions during his six years as governor. For each of the first 57, he made his judgment based on a three- to seven-page "execution summary" prepared by Gonzales and on an oral briefing that typically lasted no more than 30 minutes that the chief counsel usually presented on the day of the execution. In nearly all these cases, Gonzales was the only person standing between the executioner and a governor who made it abundantly clear he had little or no interest in granting clemency.
Where some might view this as a terrifying and formidable responsibility, Gonzales's "confidential" memos suggest that he saw his role as more of an expediter of his boss's preordained conclusion. Far from presenting an evenhanded or nuanced discussion of the case for and against clemency, Gonzales's execution summaries display a consistent prosecutorial bias. Not once does he attach a clemency petition in which the condemned put forward his or her best case for a reprieve. And Gonzales's summaries repeatedly play down or fail to report the most important issues at hand: claims of ineffective counsel, conflicts of interest, mitigating evidence, evidence never presented to a jury, even evidence of innocence. Not surprisingly, a disinterested observer relying solely on Gonzales's memos would probably do exactly what Bush did: deny clemency in every single case.
Consider the case of Terry Washington. Gonzales's three-page summary misleadingly suggests that there was doubt about the central issue in Washington's plea for life: the fact that he was brain-damaged and mentally retarded. But the state of Texas did not dispute the fact that Washington was retarded. Gonzales doesn't inform Bush that Washington's incompetent attorney never called a mental health expert to testify, never advised the jury that his client was retarded, or that he had an IQ between 58 and 69 and had been beaten with whips, water hoses, extension cords, fan belts and wire hangers as a child. Nine hours after Gonzales's briefing, Washington was executed. The Supreme Court has since found executions of the mentally retarded to be cruel and unusual punishment.
In the case of David Wayne Stoker, there were enough red flags for a May Day parade, yet Gonzales spotted none of them. For starters, a federal appellate judge had concluded that the state's star witness was just as likely the murderer as Stoker. Gonzales's 18-sentence summary also failed to note that a key witness recanted after Stoker's conviction (explaining that he'd been pressured by the prosecution to present perjured testimony) and that the state's star witness received a financial reward for fingering Stoker, had felony drug and weapons charges dropped and therefore had an obvious motive for accusing Stoker. Gonzales also didn't tell Bush that this witness and two police witnesses lied under oath at trial, that the state's expert medical witness pleaded guilty to seven felonies involving falsified evidence and that the state's psychiatric witness, whose testimony was essential to securing a death sentence, never even interviewed Stoker. The psychiatrist had since been expelled from the American Psychiatric Association for repeatedly providing unethical testimony in murder cases.
Senators might want to know how none of this public information made it into Gonzales's report. And they might ask how Gonzales's office could be prescient enough, a full week before Gonzales wrote his summary and briefed the governor, to inform Stoker's attorney that there would be no grant of clemency.
One could, of course, argue that the client calls the shots, and that Gonzales delivered exactly what Bush wanted. But the 57 cases Gonzales summarized were all matters of life or death. They included people such as Stoker, who may have been innocent, and others such as Washington who had something less than a fair trial. Given the stakes, one must ask whether a fair-minded or ethical lawyer would simply do as he'd been told.
Alan Berlow is a Washington-based writer who often deals with death penalty issues. He adapted this column from a longer piece in Atlantic Monthly.