The Discerning Texan
All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
-- Edmund Burke
Saturday, July 09, 2005
A Gonzalez appointment would endanger US National Security
Edward Whelan makes a great point in National Review Online: appointing Alberto Gonzalez to the Supreme Court could prove to be disastrous in the War on Terror:
As I have previously outlined, if Alberto Gonzales were appointed to the Supreme Court in the near future, he would likely have to recuse himself from virtually all the cases that the administration considers of greatest importance to the nation. His recusal obligations would have devastating consequences for the administration's prospects on the hotly divided issues that these cases present. In essence, the unique and invaluable role that Gonzales has played and continues to play as the president's top lawyer is precisely why, notwithstanding his excellent qualifications, it would be worse than senseless for the president to appoint him to any imminent vacancy.
Gonzales's recusal would, for example, place in serious jeopardy cases that present issues crucial to national security and the war on terror, as Andy McCarthy has explained.
McCarthy's piece is equally germane to this discussion:
As I've previously detailed here, last November a federal district court in Washington, D.C., boldly extended prisoner-of-war safeguards to al Qaeda operative Salim Ahmed Hamdan (reputed to be Osama bin Laden's driver) who is currently being held in Guantanamo Bay. To do so, the judge not only had to rewrite the Geneva Conventions into something vastly different from the treaty ratified by the United States in 1949. He also had to ignore that the U.S. has considered and has — for over a quarter-century — expressly refused to ratify a treaty (the 1977 Protocol I to the Geneva Conventions) that would grant POW protections to non-state militias.
That case is now on appeal, and undoubtedly heading for the Supreme Court — where some of the very justices who seem most comfortable with extending privileges to the enemy during wartime have also recently taken to citing unratified treaties (not to mention other varieties of foreign law) as authority for some of their rulings.
Moreover, in an earlier case that is also part of the Rasul fallout, last October another district judge in Washington ruled in Odah v. United States that alien enemy combatants — unlike the vast majority of American prisoners who file habeas-corpus petitions — are entitled to have counsel paid for by the U.S. taxpayers they are trying to kill in order to challenge their detention by our military in their war against us.
These cases are immensely important to national security and the war on terror. They may only be the tip of the iceberg. And they will come before a Supreme Court that already sports blocs of justices hospitable to both the notion of enhanced due process for terrorists and the imposition on Americans of elite international sensibilities that have won neither adoption in the manner prescribed by the constitution nor popular favor.
But they would almost certainly not come before a Justice Gonzales. As the president's chief counsel, and now as attorney general, he has, to his great credit, been a key architect of the Bush administration's aggressive policies for combating international terror networks. It is difficult to see how he could avoid having to recuse himself from the resulting cases — not just Hamdan and Odah but the others that are sure to follow.
President Bush has quite appropriately made national security the defining issue of his presidency. It remains the defining issue even as he considers court vacancies. So he must ask himself: Are there five reliable votes on the Supreme Court in favor of national security? Are there five votes against the judicial weaving from whole cloth of a new set of deferential due-process norms for international terrorists?
The answer is clearly "no." As long as it is, the president needs to choose a justice who will not only stand firm, but one who can actually hear the cases.
Even in a perfect world, if Gonzalez were a strict constitutionalist (which he isn't...), our National Security is too crucial to trust it to a man who has conflicts of interest on these matters.
As I have previously outlined, if Alberto Gonzales were appointed to the Supreme Court in the near future, he would likely have to recuse himself from virtually all the cases that the administration considers of greatest importance to the nation. His recusal obligations would have devastating consequences for the administration's prospects on the hotly divided issues that these cases present. In essence, the unique and invaluable role that Gonzales has played and continues to play as the president's top lawyer is precisely why, notwithstanding his excellent qualifications, it would be worse than senseless for the president to appoint him to any imminent vacancy.
Gonzales's recusal would, for example, place in serious jeopardy cases that present issues crucial to national security and the war on terror, as Andy McCarthy has explained.
McCarthy's piece is equally germane to this discussion:
As I've previously detailed here, last November a federal district court in Washington, D.C., boldly extended prisoner-of-war safeguards to al Qaeda operative Salim Ahmed Hamdan (reputed to be Osama bin Laden's driver) who is currently being held in Guantanamo Bay. To do so, the judge not only had to rewrite the Geneva Conventions into something vastly different from the treaty ratified by the United States in 1949. He also had to ignore that the U.S. has considered and has — for over a quarter-century — expressly refused to ratify a treaty (the 1977 Protocol I to the Geneva Conventions) that would grant POW protections to non-state militias.
That case is now on appeal, and undoubtedly heading for the Supreme Court — where some of the very justices who seem most comfortable with extending privileges to the enemy during wartime have also recently taken to citing unratified treaties (not to mention other varieties of foreign law) as authority for some of their rulings.
Moreover, in an earlier case that is also part of the Rasul fallout, last October another district judge in Washington ruled in Odah v. United States that alien enemy combatants — unlike the vast majority of American prisoners who file habeas-corpus petitions — are entitled to have counsel paid for by the U.S. taxpayers they are trying to kill in order to challenge their detention by our military in their war against us.
These cases are immensely important to national security and the war on terror. They may only be the tip of the iceberg. And they will come before a Supreme Court that already sports blocs of justices hospitable to both the notion of enhanced due process for terrorists and the imposition on Americans of elite international sensibilities that have won neither adoption in the manner prescribed by the constitution nor popular favor.
But they would almost certainly not come before a Justice Gonzales. As the president's chief counsel, and now as attorney general, he has, to his great credit, been a key architect of the Bush administration's aggressive policies for combating international terror networks. It is difficult to see how he could avoid having to recuse himself from the resulting cases — not just Hamdan and Odah but the others that are sure to follow.
President Bush has quite appropriately made national security the defining issue of his presidency. It remains the defining issue even as he considers court vacancies. So he must ask himself: Are there five reliable votes on the Supreme Court in favor of national security? Are there five votes against the judicial weaving from whole cloth of a new set of deferential due-process norms for international terrorists?
The answer is clearly "no." As long as it is, the president needs to choose a justice who will not only stand firm, but one who can actually hear the cases.
Even in a perfect world, if Gonzalez were a strict constitutionalist (which he isn't...), our National Security is too crucial to trust it to a man who has conflicts of interest on these matters.
