Alberto Gonzales & the Lawyers of the Third Reich

The most infamous memo was a January 25, 2002 letter from Gonzales to Bush, which argued that “the war against terrorism is a new kind of war…. [T]his new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions” regarding treatment of suspected Al Qaeda and Taliban members. Gonzales also noted that this would substantially reduce the threat of criminal prosecution of U.S. personnel for war crimes. It is now clear that the memos soon became official policy, leading to the classification of detainees as “enemy combatants” who were stripped of their legal rights, harsh interrogation techniques that eventually included torture, and the escalation of “extraordinary rendition” (state-sponsored abduction) of suspected terrorists to secret overseas prisons. 

Once the memos were released in 2004, human rights and civil liberties groups sought to hold the Bush-Cheney legal team accountable for detainee abuses at Abu Ghraib, Guantanamo Bay, and secret overseas prisons. Their efforts reached a climax when the Center for Constitutional Rights and dozens of other organizations filed a criminal complaint in Germany last November on behalf of 12 detainees. The suit alleged that Gonzales, Rumsfeld, and a dozen other U.S. officials committed war crimes and crimes against humanity. 

Executive Power Grab 

The U.S. Attorney firings and other domestic scandals in which Gonzales has been implicated—the National Security Administration’s use of warrantless surveillance and the FBI’s abusive application of the USA PATRIOT Act—are the other side of a radical executive power grab that became apparent after the September 11 attacks. It included Congress’s rapid passage of laws that ceded tremendous power to the president and a series of executive decrees framed within the context of a newly declared “war on terror.”  

Gonzales (who was Bush’s legal counsel at the time) was deeply involved in forging these policies, along with an entire team of Bush-Cheney lawyers that included David Addington (Cheney’s legal counsel), John Yoo and Jay Bybee (Justice Department lawyers in the Office of Legal Counsel), and Timothy Flanigan (deputy to Gonzales during his tenure as White House counsel), among others. Most were members of the ultraconservative Federalist Society and subscribed to the “unitary executive” theory—the idea that congressional and judicial power over the executive branch should be strictly limited and that the president should retain absolute control over all cabinet-level agencies. 

Many of the new policies swept away restrictions on the treatment and interrogation of detainees, which shocked a number of prominent people in the U.S. In January 2005 a dozen retired generals and admirals publicly opposed Gonzales’s attorney general nomination, declaring, “U.S. detention and interrogation operations in Afghanistan, Iraq, Guantanamo Bay, and elsewhere…have fostered greater animosity toward the U.S., undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world.” 

Days later, members of the Senate Judiciary Committee attending Gonzales’s confirmation hearings were stunned by Admiral John Hutson’s testimony. Hutson, a retired U.S. Navy Judge Advocate General, warned, “The strongest nation on earth can ill afford an attorney general who engages in sloppy, shortsighted legal analysis or who doesn’t object when others do.” 

Even more frightening are the words of retired U.S. Army Judge Advocate General Corps, Jordan Paust, who wrote, “Not since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war.” Other legal scholars, including Scott Horton and Sanford Levinson, have made similar observations. 

Bush-Cheney’s Legal Team and the Third Reich Jurists 

Such comments beg a serious question: To what extent are Bush’s legal counselors (including Gonzales) playing a role analogous to that of Nazi jurists in the 1930s? The answer is disturbing. Though there are obvious differences in political ideologies and historical context, there are key similarities: 

1. A “state of emergency” was declared to strengthen executive power. In both cases, government lawyers claimed that extraordinary circumstances required boosting executive power vis-a-vis both Congress (Reichstag in Germany) and the courts. In Germany, a “state of emergency” was triggered by the February 1933 Reichstag fire, which led to President von Hindenberg’s signing of the Reichstag Fire Decree. This allowed the Nazis to suspend civil liberties and detain suspected Communists. A month later the Reich- stag passed the Enabling Act, which gave the chancellor power to enact laws, foreign treaties, and constitutional changes without parliamentary approval. 

In the U.S., the 9/11 attacks triggered a “state of emergency.” Congress passed the “Use of Force Resolution” on September 14 (which ceded war power to the president) and the USA PATRIOT Act on October 26 (which restricted civil liberties). A November 13 executive order proclaiming a state of “extraordinary emergency” announced rules for defining enemy combatants and for forming military commissions not subject to congressional or judicial review. 

2. Political theories provided a legal framework for executive usurpation of power. In the 1920s, influential German legal scholar Carl Schmitt argued that a strong dictatorship more effectively embodies the people’s will than parliamentary democracies, since dictators can act more quickly and decisively. He theorized that a government capable of decisive action must include a dictatorial element in its constitution, which can be triggered in emergencies. This was the tool he crafted for dismantling liberal democracy. (Schmitt later joined the Nazi party and was appointed director of the Union of Nazi Jurists.) This theory became fully developed in the “Führer principle”—the notion that the Führer’s will is the law—and was realized in 1934, when Hitler merged the offices of president and chancellor. 

In the U.S., the unitary executive theory emerged as an important concept among a radical Republican fringe beginning in the 1970s. In a recent article for the New Republic, Jeffrey Rosen documents the development of this theory in recent years, highlighting the post-9/11 transformation of unitary executive theory into practice under the guidance of Gonzales, Addington, Yoo, Bybee, Flanigan, and others. 

3. Parliamentary power was reduced following legal reforms. Parliamentary power in both cases was reduced to a shadow of itself as checks and balances eroded. In Nazi Germany, the impact of the Enabling Act was so severe that by 1934, the Reichstag was effectively a rubber stamp for the Führer. 

In the U.S., Congress has not effectively challenged the expansion of executive power since 9/11. Even the conservative group American Freedom Agenda (founded by four prominent Republicans) has recently expressed concern that “since 9/11, the executive branch has chronically usurped legislative or judicial power, and has repeatedly claimed that the president is the law.” 

4. Officials from the executive exerted pressure on jurists to limit their independence. In Germany Nazi Justice Minister Roland Freisler warned judges in 1934 that, “It is not the role of the judge to alter the existing laws of the nation” because “chaos and anarchy would replace unified leadership” were judges to “decide questions which can be solved only from the superior vantage point of the Führer.” 

In the U.S. Alberto Gonzales has directed polite warnings to the Supreme Court—for example last September when he said, “The Constitution…provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime…. [W]hen courts issue decisions that overturn long-standing traditions…they cannot—and should not—be shielded from criticism….  A proper sense of judicial humility requires judges to keep in mind the institutional limitation of the judiciary.” The U.S. attorney firings are a not-so-polite warning to independently minded federal prosecutors. 

5. Legal advisors argued that an unconventional enemy rendered international laws obsolete. In the case of the Nazis, the German General Staff claimed that Russian “partisans” driven by radical Communist ideology were engaging in terrorist attacks, and therefore not subject to the protections of the 1929 Geneva Conventions or the 1907 Hague Convention. 

In the U.S. Gonzales, Yoo, and others have argued that Al Qaeda and the Taliban (among others) are driven by radical religious ideology and engaged in terrorist attacks and are therefore not subject to the 1949 Geneva Conventions. Consequently, both the Nazi jurists and the Bush legal team viewed international laws as obsolete. 

6. Transformations in law led to state-organized brutality. In both cases, the consequences of legal opinions, memos, and directives led to state-organized practices of brutal interrogation, torture, and extermination of enemies. Secret prisons were a feature of both Nazi and U.S. systems though there are significant differences in scale. The Nazis organized the mass murder of millions of people. By contrast, 108 “detainees” have been reported killed in U.S. custody since 2001, with 34 of those suspected or confirmed homicides resulting from harsh interrogations. (It is important to note, however, that an estimated 655,000 “excess deaths” of Iraqis have occurred since 2003, the vast majority of which were civilian deaths.) 

Points of Difference 

There are, of course, important differences. Nazi lawyers adopted a political ideology cast in terms of “race,” “blood,” and more generally, the “people” (volk). The good of the volk—not of individual Germans—was given precedence over other considerations and Nazi jurists viewed the Führer as the embodiment of the people’s will. This has no analog among the members of the Bush- Cheney legal team. 

Another difference is that in the case of Germany, the Reichstag never recovered independent power until after the war. In the case of the U.S. elections of 2006, the Democratic party succeeded in winning a majority. Whether or not they will be willing to roll back the gains in power made by the executive branch since 2001 remains to be seen. 

So far, the results have been mixed. While the Senate Judiciary Committee has begun investigating the Justice Department’s domestic policies, they are not likely to repeal the Military Commissions Act or reinstate habeas corpus rights for aliens. 

Despite these distinctions, the lengthy list of similarities should concern those who cherish a democratic system of checks and balances. It should also give pause to those who value the rule of international law. 

It would be fair to note that the Bush-Cheney administration represents one end of a relatively narrow political spectrum in the U.S., which at the supposed liberal end is represented by the Clinton administration and “new Democrats” such as John Kerry. It is worth remembering that extraordinary rendition was developed by the Clinton administration in the mid-1990s following the Oklahoma City bombing (even though that tragedy was orchestrated by Americans). Furthermore, the “regime change” policy towards Iraq was first formalized when Clinton signed into law the Iraq Liberation Act of 1998. It was also William Cohen (Clinton’s defense secretary) who noted that the U.S. would make “unilateral use of military power” to ensure “uninhibited access to key markets, energy, supplies, and strategic resources.” 

John Kerry, days before the 2004 presidential elections, told the Boston Globe, “I do not think the United States should join the International Criminal Court…. U.S. officials, including soldiers, should be provided some protection,” presumably from those seeking to apply the Geneva Conventions and the UN Convention against Torture. Never did the “new Democrat” display concern for providing protection to civilians in Iraq and Afghanistan, much less to those illegally detained at Guantanamo. 

Imperial Presidency? 

How does Alberto Gonzales fit into this picture? He has been deeply involved in the creation of “enemy combatant” policies, the torture memos, legal justifications for the U.S. invasion of Iraq, and the escalation of extraordinary rendition policies. He has also been deeply involved in other policies that have dramatically expanded presidential power—through warrantless surveillance and in firing U.S. attorneys for apparently political reasons.  

Gonzales and a handful of others pursued an unprecedented power grab on behalf of Bush and Cheney to the point that some establishment conservatives describe their policies as “reminiscent of the kingly abuses that provoked the Declaration of Independence.” 

The conservative Financial Times of London—typically understated in its approach—recently summarized Gonzales’s career by reminding readers that “As attorney-general, he is meant to be the people’s lawyer—not the president’s…. [H]e has provided spurious legal justifications for government torture, detentions, and surveillance policies, parts of which have been found to violate U.S. and international law and the U.S. constitution…. [Mr. Gonzales] has amply proved that he will never be anything other than Mr. Bush’s lawyer—a mere apologist for the imperial presidency.” 

As the U.S. attorney firings scandal unfolds, it is important to view it and other domestic abuses as part of a broader authoritarian project orchestrated by Gonzales and other unitary executive theorists. Most recently, this has included the creation of the Military Commissions Act of 2006 by the Bush-Cheney legal team and key members of the U.S. Senate. (It was passed into law by Congress last fall as a response to Supreme Court decisions that checked the president’s power to hold detainees indefinitely without charge.) The MCA terminates the writ of habeas corpus for non-citizens, grants the president the right to label persons “enemy combatants” thereby stripping them of their legal rights, and grant retroactive immunity for government officials who authorized or ordered acts of torture or abuse. 

Those who know Gonzales describe him as a pleasant person. Yet in his institutional roles, he and his colleagues have paved the way for the suppression of civil liberties, the brutal interrogation of prisoners, and a war of aggression —acts that violate international law and the U.S. Constitution. 

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Roberto J. González is associate professor of anthropology at San Jose State University. His most recent book is Anthropologists in the Public Sphere: Speaking Out on War, Peace, and American Power (2004).