I’m posting this to provide background for you to inspire you to write your senators about opposing the Gonzales confirmation for US Attorney General.
Here’s
part one of two of these clips.
In this clip, Gonzales confirms that he believes that President Bush can take it upon himself to not to follow the Geneva Convention, the War Crimes Act, or any other law, if he feels it is unconstitutional, as long as he thinks about it a lot first.
Gonzales manages to reduce this very specific question about what’s going now in the current world (re: Bush and Gonzales’ advice that geneva conventions don’t need to be followed) to a hypothetical about whether it’s theoretically possible for “a president” to not adhere to a law if he felt it was unconstitutional. (Which of course it is.)
But this isn’t about anything hypothetical at all. This is about some real legal advice that Gonzales gave to President Bush in August of 2002 while he was his legal counsel. We’re talking about a specific, deliberate legal justification for why a specific, really important law, the Geneva Conventions, doesn’t necessarily have to be adhered to, and under what specific scenario it might be legal to do so.
Then Gonzales either lies (if he is aware of the facts) or makes a mistake (if is is ill informed of the facts, which I highly doubt), when he states that the courts have decided both ways as to whether or not it is OK for a President to knowingly break a law on the grounds that it is unconstitutional. Truman tried to do this fifty-two years ago, and the Supreme Court decided he was wrong in doing so. The Supreme Court has never sided with a president on this issue. So again — Gonzales is either lying or misinformed. Neither is appropriate for a U.S. Attorney General. He needs to be both honest and well informed as to the legal status of such important questions.

Video of Gonzales Questioned By Dick Durbin (Part Two of Two)
(Small – 13 MB)

Audio of Gonzales Questioned By Dick Durbin (Part Two of Two)
(MP3 – 8 MB)

Senator Durbin:
“But you believe he has that authority. He could ignore a law passed by this Congress, signed by this President or another one, and decide that it is unconstitutional and refuse to comply with that law?”
Alberto Gonzales:
“Senator, again, your asking me, hypothetically, does that authority exist? I guess I would have to say that, hypothetically, that authority may exist. But let me also just say that we certainly understand and recognize the role of the courts in our system of government. We have to deal with some very difficult issues here. Very, very complicated. Sometimes the answers are not so clear. The President’s position on this is, ultimately the judges, courts, will make the decision as to whether or not we’ve drawn the right balance here. And, and, in certain circumstances, the courts have agreed with the Administrations position, and, in certain circumstances, the courts have disagreed, and we will respect those decisions.”
Senator Durbin:
“Fifty-two years ago, a president named Harry Truman decided to test that premise. Youngstown Sheet and Tube Co Et. Al vs. Sawyer in the Supreme Court. The Supreme Court said, as you know, “President Truman, you’re wrong. You don’t have the authority to decide whats constitutional – what laws you like and don’t like. I’m troubled that you would think, as our incoming Attorney General, that a president can pick and choose the laws that he thinks are constitutional, and ultimately wait for that test in court to decide whether or not he’s going to comply with the law.”

Video of Gonzales Questioned By Dick Durbin (Parts One And Two)
(Small – 27 MB)

Audio of Gonzales Questioned By Dick Durbin (Parts One And Two)
(MP3 – 16 MB)

Part Two
Senator Durbin:
“In your August memo, you created the possiblity that the President could invoke his authority as Commander In Chief to not only suspend the Geneva Convention, but the application of other laws. Do you stand by that position?”
Alberto Gonzales:
“I believe that I said in response to an earlier question that I do believe it is possible, theoretically possible, for the Congress to pass a law that could be viewed as unconstitutional by a President of the United States. And that’s not just the position of this President. That’s been the position of Presidents on both sides of the aisle. In my judgement, making that kind of conclusion is one that requires a great deal of care and consideration. But if you’re asking me if it’s theoretically possible that Congress could pass a statute that we view as unconstitutional. I’d have to conceed sir that that’s theoretically possible.”
Senator Durbin:
“Has this president ever invoked that authority as Commander In Chief or otherwise, to conclude that a law was unconstitutional and refuse to comply with it?”
Alberto Gonzales:
“I believe that I stated in my June briefing about these memos that the President has not exercised that authority.”
Senator Durbin:
“But you believe he has that authority. He could ignore a law passed by this Congress, signed by this President or another one, and decide that it is unconstitutional and refuse to comply with that law?”
Alberto Gonzales:
“Senator, again, your asking me, hypothetically, does that authority exist? I guess I would have to say that, hypothetically, that authority may exist. But let me also just say that we certainly understand and recognize the role of the courts in our system of government. We have to deal with some very difficult issues here. Very, very complicated. Sometimes the answers are not so clear. The President’s position on this is, ultimately the judges, courts, will make the decision as to whether or not we’ve drawn the right balance here. And, and, in certain circumstances, the courts have agreed with the Administrations position, and, in certain circumstances, the courts have disagreed, and we will respect those decisions.”
Senator Durbin:
“Fifty-two years ago, a president named Harry Truman decided to test that premise. Youngstown Sheet and Tube Co Et. Al vs. Sawyer in the Supreme Court. The Supreme Court said, as you know, “President Truman, you’re wrong. You don’t have the authority to decide whats constitutional – what laws you like and don’t like. I’m troubled that you would think, as our incoming Attorney General, that a president can pick and choose the laws that he thinks are constitutional, and ultimately wait for that test in court to decide whether or not he’s going to comply with the law.”
Alberto Gonzales:
“Senator, you asked me whether or not it was theoretically possible that the congress could pass a law that we would view as unconstitutional. My response is that, obviously we would take that very, very seriously, look at that carefully, but I suppose that it is theoretically possible that that would happen.”
“Let me just add one final point. We in the Executive Branch of course understand that there are limits upon Presidential Power, very very mindful of Justice O’Connors statement in the Hamdi decision that a state of war is “not a blank check” for the President of the United states with respect to the rights of American citizens. I understand that, and I agree with that.”
Senator Durbin:
“Well let me say in conclusion – I’m glad to hear that. I’m troubled by the introduction. The “hypothetical” is one that you raised in the memo relative to torture. As to whether the President has the authority as Commander In Chief to ignore the Geneva Conventions or certain other laws. This is not something that comes from our side of the table of our own creation. It is your creation. The hypothetical you created.”
“My concern is this; I do not believe that this government should become a symbol for a departure from time honored traditions where we have said that we will not engage in torture, directly or indirectly by rendition, which I hope to ask you about in the next round. That we will stand by the same standards of Geneva Conventions since World War II and, frankly, dating back to Abraham Lincoln and the Civil War in terms of the treatment of prisoners. I am concerned that that round of memos that went through the Department of Justice, Mr. Baibi (sp?), into the Department of Defense, into Guantanamo, and then migrated somehow to interrogation techniques in Abu Ghraib has stained our world reputation. I want to win this war on terrorism, but I don’t want to do it at the expense of our soldiers, who may some day become prisoners themselves. Thank you Mr. Gonzales.”