While the media are once again buying the White House backroom spin that the president’s error in the Gonzales scandal is one of misplaced loyalty to a friend who didn’t perform up to expectations, the truth is that Bush promoted Gonzales because of his assaults on the Constitution and not in ignorance of that sorry record. As the president put it in “reluctantly” accepting the resignation of “a man of integrity, decency and principle”: “As Attorney General and before that, as White House Counsel, Al Gonzales has played a role in shaping our policies in the war on terror. … The PATRIOT Act, the Military Commissions Act and other important laws bear his imprint.”
Frighteningly accurate testimony: that the Gonzales legacy will live on long after his government tenure. One aspect of that dreadful legacy, not often remarked upon, is that Gonzales shaped Bush’s selections of lifetime appointees to the judiciary that will preside for decades to come. As Bush observed: “As Attorney General, he played an important role in helping to confirm two fine jurists in Chief Justice Roberts and Justice Samuel Alito. He did an outstanding job as White House Counsel, identifying and recommending the best nominees to fill critically important federal court vacancies.”
One of those critical vacancies was filled on Gonzales’ recommendation by the appointment of then-Assistant Attorney General Jay S. Bybee as a judge on the US Ninth Circuit Court of Appeals. Bybee distinguished himself in the eyes of Gonzales and the President by being the author of the 50-page “Bybee memo” of Aug. 1, 2002, which held that torturing al-Qaida captives “may be justified” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted under President Bush. But Bybee went further than merely sweeping aside the restraints of international law, concluding, “Finally, even if an interrogation method might violate Sect. 2340A [of the U.S. Torture Convention passed in 1994] necessity or self-defense could provide justification that would eliminate any criminal liability.”