Sen. Pat Leahy blog: The Attorney General Represents All Americans, Not Just One

anuary 18th, 2007

The Attorney General is a different kind of Cabinet position. He is not the Attorney General of the President; he is the Attorney General of the United States. This individual must be independent of the President.

Regrettably, Attorney General Gonzales has championed policies that are in fundamental conflict with decades of law, sound military practice, international law, and human rights. He remained silent for almost two years about a deeply flawed and legalistic interpretation of our Nation’s torture statute. He also accepted a patently erroneous interpretation of the torture convention and apparently believes that the President, when acting as Commander in Chief, is above the law.

Nothing is more fundamental about our constitutional democracy than our basic notion that no one is above the law. This is about as extreme a view of Executive power as I have ever heard. I believe it is not only dead wrong as a constitutional matter but extremely dangerous. The rule of law applies to the President, even this President.

Ultimately, the Attorney General’s duty is to uphold the Constitution and the rule of law — not to work to circumvent it. Both the President and the Nation are best served by an Attorney General who gives sound advice and takes responsible action, without regard to political considerations — not one who develops legalistic loopholes to serve the ends of a particular administration. The Attorney General cannot interpret our laws to mean whatever the President wants them to mean. To do so would deny us the constitutional protections upon which this Nation was founded. The Attorney General is supposed to represent all of the American people, not just one of them.

This Administration has taken one untenable legal position after another regarding the rule of law in the war against terror. It will not admit to making mistakes. It takes action only after mistakes are made public and become politically indefensible. Given the Republican Party’s leadership in Congress, the Federal courts have provided what little check there has been on this President’s claim of unfettered Executive power. The Congress has failed to do any real oversight of that use of power.
To reclaim our moral leadership in the world, and to become a true messenger of hope instead of a source of resentment, we need to acknowledge wrongdoing and show accountability for mistakes that have been made. We have seen departures from our country’s honorable traditions, practices, and established law in the law in the use of torture, originating at the top ranks of authority and emerging at the bottom. At the bottom of the chain of command, we have seen a few courts martial. But at the top, we have seen medal ceremonies, pats on the back, and promotions.

There is much that has gone wrong that this administration has stubbornly refused to admit or correct. For this democratic republic to work, we need greater openness and accountability.

If these words seem familiar, it is because I have spoken them before. They are excerpts from my statement to the Senate on February 1, 2005, as we began debate on the nomination of Alberto Gonzales to become the Attorney General of the United States. During the intervening two years, they have become no less true.

Today Attorney General Gonzales will appear at an oversight hearing before the Senate Judiciary Committee, his first appearance before us in the new Congress. This is an occasion for the questions of the elected representatives of the American people to be answered, under oath. I urge Attorney General Gonzales to answer our questions and to work with us.

For too many months the Department of Justice has shown blatant disregard for the Congress and its oversight role. Instead of providing us with information, too often Administration witnesses merely parrot White House talking points. I hope for a real exchange and responsive information from the Administration.

For the last six years, the Administration has chosen to disregard any law that it did not like. The cost to American liberty, our standing in the world, and to the security of our soldiers and citizens is staggering — even more so than the half a trillion dollar cost of the war in Iraq. The result has been the dangerous specter of illegal Government surveillance at home, undermined standing in the world, and compromised American principles. This Administration has acted as if it were above the law for far too long.

Time and again, this Administration and its Justice Department have cloaked its policies and miscalculations in secrecy, leaving Congress, the courts and the American people in the dark about what it is doing. And all the while that it has refused to answer questions about what the government is doing, this Administration ironically has been creating and expanding databanks that are collecting more and more personal information about every American. This President has instructed the Justice Department to assert the state secrets privilege B a privilege intended only to shield truly sensitive documents and witnesses from public disclosure B with more frequency than any other President in history. By so doing the Administration hopes to short-circuit much-needed judicial review.

Yesterday, on the eve of today’s hearing, the Attorney General informed the Judiciary Committee that the Administration apparently has finally agreed to follow the law, instead of circumventing it, in the electronic eavesdropping that is being done under the NSA’s domestic surveillance program. I welcome the President’s decision not to reauthorize the NSA’s warrantless spying program and instead to seek approval for all wiretaps from the Foreign Intelligence Surveillance Court, as the law has required for years. Questions remain about the outlines of the new process, which we will begin exploring at today’s hearing.

Since this program was first revealed, I have urged the Administration to inform Congress what the government is doing and to comply with the checks and balances Congress wrote into law in the Foreign Intelligence Surveillance Act.

We must engage in all surveillance necessary to prevent acts of terrorism, but we can and should do so in ways that protect the basic rights of all Americans, including the right to privacy. The issue has never been whether to monitor suspected terrorists but doing it legally and with proper checks and balances to prevent abuses.

Providing efficient but meaningful court review would be a major step toward addressing those concerns.

I continue to urge the President to fully inform Congress and the American people about the contours of the Foreign Intelligence Surveillance Court order authorizing this surveillance program, and of the program itself. Only with meaningful oversight can we ensure the balance necessary to achieve security with liberty.

Yesterday’s announcement about the NSA program and today’s oversight hearing with the Attorney General offer the chance for a new start. I hope all Members of the Judiciary Committee, Republicans and Democrats alike, will join me to help restore the constitutional checks and balances that have been systematically eroded by this Administration, and I hope that we can begin that process this week. I urge the Attorney General to fully answer our questions so that we can join together in meaningful oversight and genuine accountability. The American people expect and deserve no less.

http://blog.thehill.com/2007/01/18/the-attorney-general-represents-all-americans-not-just-one/