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Go Ask Alberto

Attorney Andrew Cohen analyzes legal issues for and CBS News.

White House counsel Alberto R. Gonzales will be confirmed as the next Attorney General of the United States no matter how many tough questions he does or does not answer before the Senate Judiciary Committee.

With his election victory last November, President Bush earned the right to choose a replacement for John Ashcroft and it's fairly clear that Gonzales has nothing in his public or private record that disqualifies him for a temporary post in a second-term Bush cabinet. Combine those facts with the Republican numbers in the Senate and it's a cinch that Gonzales ultimately will get the votes he needs for confirmation.

But that doesn't mean that Gonzales should get the post without having to answer - in a serious, candid and complete way - some of the important questions that have been raised during his long tenure in public life.

Gonzales isn't being named to some second-tier cabinet post. Once confirmed, he will be the nation's top law enforcement official; essentially the second-in-command (next to the President) when it comes to enforcing the law and making all of the policy choices for which an Attorney General is responsible. He will, quite literally, have life-or-death powers when it comes to capital cases and he will be required, as the nation's top lawyer, to represent all citizens and not just his Republican buddies.

Most of the recent questions about Gonzales' judgment and abilities have focused upon his role in the procurement of a controversial legal memorandum that tacitly endorsed certain forms of torture against terror suspects in the name of national security.

This is a big deal and it's a fairly good bet that the most frequent questions Gonzales will be required to tackle beginning Thursday are why he sought the memo and then permitted it to stand as official policy for as long as it did.

At best, the memo represented poor judgment: shortsighted overzealousness on the part of a group of professional lawyers who should have known better. At worst, the memo represented all that our enemies (and some friends) think of us: that we are ugly Americans willing to bend the rules (in this case, international law and norms) when they do not suit our purposes.

But lawyers all the time generate written legal support for positions their clients want to take. And usually there is enough leeway within the parameters of the law to enable good lawyers to make plausible arguments that would tend to support even the most ridiculous or even sinister legal position. That's just part of both the beauty and the curse of hundreds of years of legal precedent.

The torture memo is a terribly unfortunate but not surprising byproduct of the unprecedented terror attacks on America and the eagerness of the Bush Administration to take advantage of the ambiguities that exist between the definitions of soldiers, criminals and terrorists.

To me, Gonzales' memo says more about the Bush Administration's politics, diplomacy, and morality than it does about his legal acumen or philosophy. Ask any lawyer you know and she will tell you that she has written a legal memo that offended her personal sensibilities. You get the answers you want from your lawyer the way you get the appraisal figure you want from your appraiser.

More relevant to me about Gonzales' candidacy is the clemency evaluation work he did on behalf of George W. Bush when the latter was governor of Texas and the former was his counsel. As chronicled brilliantly by Alan Berlow in the Atlantic Monthly magazine in the summer of 2003, Gonzales "repeatedly failed to apprise Bush of some of the most salient issues" in the dozens and dozens of cases he was asked to evaluate on behalf of the Governor.

"A close examination of the Gonzales memoranda," Berlow wrote, "suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand, ineffective assistance of counsel, conflict of interest; mitigating evidence; even actual evidence of innocence."

There's more. Berlow wrote: "I have found no evidence that Gonzales ever sent Bush a clemency petition - or any document - that summarized in a concise and coherent fashion a condemned defendant's best argument against execution in a case involving serious questions of innocence or due process. Bush relied on Gonzales' summaries, which never made such arguments."

Gonzales did not agree to be interviewed for the Berlow piece - a fact pointed out by Berlow - but there can be no defense for such cursory work given the consequences of the clemency process. If the torture memo is a study in legal overreaching, Berlow's research indicates that Gonzales' clemency work in Texas is a shocking study of either legal underachievement or purposeful incompleteness.

Either way, it's a sad record to run on when the post you seek is the nation's most important and visible attorney. Men were executed in Texas after then-Governor Bush denied them clemency based upon Gonzales' memos.

This is the same criminal justice system - the same death penalty system - that has repeatedly run afoul of the United States Supreme Court, so much so that the Justices are in open warfare with the criminal courts of Texas over what procedures ought to apply in capital cases.

And it is the same system which just this week generated hearings before the Texas state senate in which one Senator exclaimed: "I've been in washaterias cleaner than the [Houston] crime lab." It is the same system, according to Wednesday's New York Times, in which the Houston Police Department is "still working its way through 280 boxes of misplaced evidence from 8,000 cases dating from the 1970s and discovered last August."

In that context, the Gonzales clemency memos are alarming for what they might have meant to the defendants whose lives were at stake. This is not about whether the men who requested clemency deserved it. And it is not about whether the Texas governor to whom the memos were given made the right call.

Based upon Berlow's review, the Texas memos are about fundamentally shoddy lawyering, they are about incomplete research and analysis; they are about a break with the norms of legal work that require a lawyer to be thorough and complete and to give each client as much relevant information as is humanly possible.

Legal work that wouldn't cut it in any law firm in the country - and those types of memos wouldn't - shouldn't be a stepping stone to the post of White House counsel, let alone to the post of US Attorney General. If a first year associate wrote memos as sloppy as Gonzales did, that lawyer's career advancement would be threatened. And if a partner in a law firm commissioned or permitted such sloppy memos, his fellow partners would be all over him.

Yet here we are. A guy with the talent and brains to know better wrote a series of half-assed justifications for a governor's denial of clemency, paving the way for a series of executions, and now the nation's legislators have an opportunity to at least ask why.

I hope therefore that at least one Senator, during the course of the hearings, strays from the obvious torture talk and talks instead about the Texas memos. And, just in case that Senator hasn't done his or her homework, here are a few questions in particular Gonzales ought to be required to answer, in detail:

  1. In the case of Terry Washington, who was executed, why didn't Gonzales fully inform Governor Bush that the main issue on Washington's clemency appeal was his mental retardation? After all, that issue even then was percolating up through the Texas court system on its way to the United States Supreme Court, which ultimately barred the execution of mentally retarded capital offenders.

    Why didn't Gonzales tell Bush, in the words of Berlow, that the fact that Washington "and his ten siblings were regularly beaten with whips, water hoses, extension cords, wire hangers and fan belts were never made known to the jury, although both the district attorney and Washington's trial lawyer knew of this potential mitigating evidence"?

  2. In the case of David Wayne Stoker, who was executed, why did Gonzales, in Berlow's words, devote "just eighteen sentences to the extraordinarily complex circumstances of the crime, leaving out essentially all the mitigating evidence and failing to address a multitude of questions about both the evidence against Stoker and his due-process rights"? And why didn't Gonzales tell Bush about the recantation of important testimony by Ronnie Thompson, who initially told the police that Stoker had confessed to the crime?
  3. In the case of Billy Conn Gardner, who was executed, why didn't Gonzales, again in Berlow's words, "tell Bush that the state was unable to produce a single witness who recalled ever seeing" the defendant with a goatee, which is what the victim said she saw on the face of her killer?

    Why didn't Gonzales tell Bush that one of the key witnesses against Gardner testified against him "only after prosecutors threatened to bring other charges" against him, according to Berlow. Why didn't Gonzales tell Bush that Gardner's lawyer never interviewed the key witness against him and "met with his client only once before jury selection"?

  4. And my own favorite from Berlow's fine reportage: in the case of Carl Johnson, who was executed, why did Gonzales fail to tell Bush that "Johnson's trial lawyer had literally slept through major portions of jury selection"?
If Gonzales can answer these questions to the satisfaction of the Judiciary Committee, then the panel ought to applaud him and confirm him in a heartbeat. And if he faces those questions and concedes that he could have done better and should have done better evaluation of those clemency requests, I will give him credit for candor.

But if he does neither, he'll be assuming his new vital role under a shroud of doubt - doubt that he is willing and able to face and address and resolve fairly and honestly and completely the hard truths he'll soon come across on behalf of his new client: the people of the United States of America.

There is one other portion of the Berlow piece that bears repeating here.

"The memoranda seemed attuned to a radically different posture," Berlow wrote, "assumed by Bush from the earliest days of his administration - one in which he sought to minimize his sense of legal and moral responsibility for executions." Sense a pattern here? Abu Ghraib, anyone?

By Andrew Cohen