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Aclu, Report on Alberto Gonzalez, 2005

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The Civil Liberties and
Civil Rights Record of
Attorney General Nominee
Alberto Gonzales
Prepared by the Washington Legislative Office
of the American Civil Liberties Union

January 2005

The Civil Liberties and
Civil Rights Record of
Attorney General Nominee
Alberto Gonzales
Prepared by the Washington Legislative Office of the
American Civil Liberties Union, Laura W. Murphy, Director.
Published January 2005

THE AMERICAN CIVIL LIBERTIES UNION is the nation’s premier guardian
of liberty, working daily in courts, legislatures and communities to defend and
preserve the individual rights and freedoms guaranteed by the Constitution
and the laws of the United States.
Nadine Strossen, President
Anthony D. Romero, Executive Director
Kenneth B. Clark, Chair,
National Advisory Council
Richard Zacks, Treasurer

ACLU Washington Legislative Office
915 15th Street, NW, 6th Fl.
Washington, DC 20005
ACLU National Office
125 Broad Street, 18th Fl.
New York, NY 10004-2400
(212) 549-2500

Table of Contents
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Gonzales’s Role in the “Global War on Terror” and the Iraq Conflict . . . . . . 2
The Role of the White House Counsel’s Office . . . . . . . . . . . . . . . . . . . . . . 3
The Military Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Enemy Combatants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Specific Avenues of Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. The Need for an Independent Attorney General . . . . . . . . . . . . . . . . . . . . . 6
IV. Civil Liberties Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The “Global War on Terrorism” and Domestic Law Enforcement . . . . . . . . 7
Hostility to Executive Accountability and Open Government . . . . . . . . . . . 7
The Death Penalty: The Clemency Memos . . . . . . . . . . . . . . . . . . . . . . . . . 8
Reproductive Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Support for the Federal Marriage Amendment . . . . . . . . . . . . . . . . . . . . . . 10
Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Faith-Based Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Appendix I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Civil Liberties and Civil Rights Record of Attorney General Nominee Alberto Gonzales

A n A C LU R e p o r t

The Civil Liberties and Civil Rights Record
of Attorney General Nominee Alberto Gonzales
Prepared by the Washington Legislative Office of the American Civil Liberties Union
in-chief authority to detain United States citizens and foreign nationals. His office also
undertook the legal thinking behind the White
House’s decision to support a constitutional
amendment endorsing discrimination against
persons because of their sexual orientation, and
he helped formulate the legal framework for
government-sanctioned religious discrimination in the president’s “faith-based initiative.”

As a matter of policy, the American Civil
Liberties Union emphatically maintains its 84year history of refusing to endorse or oppose
nominations made by the president, other than
nominees to the Supreme Court. By releasing
this report, the ACLU is not, in any way,
endorsing or opposing Alberto Gonzales for
the post of attorney general. We do, however,
urge the Senate to conduct a thorough and rigorous confirmation process, in which Gonzales
is asked to account for his actions and policy

However, Gonzales’s public record does not
suggest an absolutist position against reproductive freedom, and his support for the president’s guest-worker program reflects an
openness on immigration issues. While his
record on reproductive rights, civil rights and
immigration may contain a few bright lights,
the Senate will have to explore fully his commitment in these areas and others before it
votes to confirm him.

While we may not take a position on
Gonzales’s confirmation, the ACLU does comment publicly on the civil liberties records of
key officials whose positions accord them significant influence on the protection and
enforcement of civil liberties and civil rights.

The following ACLU white paper on
Gonzales’s record covers three broad themes.

I. Introduction
The departure of Attorney General John
Ashcroft and nomination of current White
House Counsel Alberto Gonzales to that position obligates the ACLU, especially in the post9/11 era when the office of attorney general is
so significant, to examine Gonzales’s public
record on civil liberties.

First, it connects the dots on Gonzales’s role in
formulating detention and interrogation policies that helped lead to the horrific abuses at
Abu Ghraib and Guantánamo Bay. It is now
common knowledge that Gonzales signed a
memorandum calling certain protections
afforded to detainees by the Geneva
Conventions “obsolete” and “quaint.”1

In short, the record is not encouraging.
Given the power and scope of the counsel’s
office, it is clear that Gonzales had a significant
role in the creation of these misguided rules
and procedures. And he has certainly been a
public cheerleader of the Bush administration’s

As White House counsel, Gonzales has demonstrated a clear enthusiasm for the Bush administration’s broad— and, we believe, unconstitutional— reading of the president’s commander1

The Civil Liberties and Civil Rights Record of Attorney General Nominee Alberto Gonzales

frequent disregard of traditional legal and
constitutional norms. This report reviews the
available evidence and suggests certain
avenues of investigation for Senators seeking
to ascertain Gonzales’s legal philosophy on
these matters.2

For instance, the attorney general today must
shoulder the burden of appointing special prosecutors to investigate malfeasance at the White
House. There is a valid concern that Gonzales’s
position as White House counsel will color his
objectivity in investigating any allegations that
civil liberties violations were caused by the criminal conduct of high-level government officials.

Appendix I of this report lists documents that
remain withheld from the public and the
Senate, but that have been discussed or
described in the press, sought in the ACLU’s
Freedom of Information Act lawsuit relating to
the torture of military prisoners overseas, and,
in several instances, requested by various
Senators. The ACLU believes the public has a
right to see these documents, and that executive privilege must not be used to shield these
documents from public scrutiny.

Third, although Gonzales’s record on traditional civil liberties issues like reproductive freedom, equal opportunity programs and gay and
lesbian rights is less detailed, it deserves thorough analysis.
In sum, the position of attorney general is a
crucial one in our political system. The president has the constitutional obligation to
ensure that the “laws be faithfully executed,”
and relies a great deal on the head of the
Justice Department to carry out that mandate.
Accordingly, attorneys general must wear two
hats. One requires them to protect our security through the enforcement of our duly enacted laws. The other, however, requires them to
be the frontline defenders of the Constitution
and steel our liberties against internal and
external threats.

Second, this report examines the possible conflicts of interest in the unique dynamic of a
White House counsel moving to the Justice
Department. As is often noted, the White
House counsel serves as the “president’s
lawyer,” but a more accurate description is the
“presidency’s lawyer.”3 The White House
counsel is meant to serve as the protector of the
office of the presidency against scandal,
against abridgements of presidential authority
(even if warranted) and against attacks on the
president’s political agenda. It is, effectively,
defense counsel for the West Wing.

II. Gonzales’s Role in the “Global
War on Terror” and the Iraq Conflict
Gonzales is well known today as the author of
a memorandum in January 2002 urging the
president to reject the protections of the
Geneva Conventions for detainees captured in
the fighting against al Qaeda and the Taliban.
This memorandum had an important role in
shaping administration policies that weakened
legal and customary constraints requiring the
humane treatment of prisoners taken during
military hostilities.

The attorney general, however, is an entirely
different creature. Though clearly an executive
officer that serves at the pleasure of the president, the attorney general must nevertheless be
the government’s guardian of the rule of law
and the Constitution. This is especially true
given the absence of an independent counsel
statute, which was one of the main mechanisms
by which the executive branch could police
itself, and the unique threats posed to constitutional checks and balances by the exigencies of
the “war on terrorism.”

Particularly because of the nexus between the
creation of many of these policies and the abuse

A n A C LU R e p o r t

The Role of the White House Counsel’s Office

Yoo/Delahunty memorandum. Calling the OLC
findings “definitive,” Gonzales informed the
president that the White House had the constitutional authority to deny the detainees legal protections, and that he disagreed with the reconsideration requested by the State Department.

Shortly after 9/11, lawyers at the Justice, State
and Defense Departments and at the Central
Intelligence Agency began researching the
legal status of the new al Qaeda and Taliban
detainees. It appears that the legal foundation
for the administration’s subsequent denial of
any formal legal protections for these detainees
was a 48-page memorandum from Justice
Department Office of Legal Counsel (“OLC”)
attorneys John C. Yoo and Robert J. Delahunty.
The document was requested by William J.
Haynes, the Defense Department’s general
counsel, in 2002.

When listing the “positive” ramifications of the
president’s decision, Gonzales wrote: “In my
judgment, the new [war on terrorism] paradigm
renders obsolete Geneva’s strict limitations on
questioning of enemy prisoners and renders
quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly
pay), athletic uniforms, and scientific instruments.”6 He also boldly asserted that a blanket
presidential finding that Geneva should not
apply “eliminates” any argument regarding the
need for case-by-case status determinations.7

The memorandum argued that neither the
Geneva Convention pertaining to prisoners of
war nor the Geneva Convention setting out the
rights of civilians captured in a war zone
applied to the detainees. Moreover, the memorandum repudiated any need for an individual
determination of POW status—as is required in
Article 5 of the Geneva Convention governing
the treatment of POWs—and argued that other
customary laws of war were likewise inapplicable.4

The ACLU objects to this line of reasoning.
The need for an individual determination by a
competent tribunal is absolutely essential to
ensure some check against wholly innocent
individuals being captured on the battlefield
and then detained indefinitely.

scandal at Abu Ghraib prison in Baghdad,
Gonzales’s role in these events deserves the
closest scrutiny by the Senate Judiciary
Committee and, indeed, by the entire chamber.

Another OLC memorandum, authored by John
Yoo and Patrick Philbin, also a deputy assistant
attorney general, argues that federal courts
would likely find themselves powerless to
entertain a habeas corpus petition from a
detainee held at Guantánamo Bay.8 That legal
position has since been clearly repudiated by
the Supreme Court.9 Gonzales should tell the
Senate whether the Yoo/Philbin memorandum
represents his own views on the matter and
whether the government’s attempt to create a
legal limbo for detainees ought to be reconsidered in light of recent Supreme Court decisions. As a former administration lawyer told
The Washington Post in 2004, Guantánamo
Bay was attractive because it was “the legal
equivalent of outer space.”10

The OLC’s reasoning directly contradicted the
conclusions of the State Department. Two days
after the Yoo/Delahunty memorandum was
sent to Defense, William H. Taft IV, the State
Department’s general counsel, submitted a
sharply worded dissent, which remains withheld from the public and Senate, arguing that
the Justice Department’s legal reasoning was
“seriously flawed.”5
Gonzales’s Jan. 25, 2002, memorandum for the

The Civil Liberties and Civil Rights Record of Attorney General Nominee Alberto Gonzales

The Senate should aggressively seek to
• The scope of Gonzales’s leadership in
formulating these policies.
• The link between these policies and the
Guantánamo Bay, in Afghanistan and in
• Whether the Justice Department and
Pentagon were following Gonzales’s
lead in the legal back-and-forth
described above.

Gonzales’s comments about the legality of the
commissions are doubly dubious in light of the
November 2004 federal court decision declaring
the tribunal system unlawful in the case of Salim
Ahmed Hamdan, a suspected al Qaeda member.14 Judge James Robertson of the United
States District Court for the District of
Columbia specifically repudiated Gonzales’s
primary argument: that Taliban and al Qaeda
combatants held at Guantánamo were not entitled to an individual determination of their prisoner of war status.15 At the time this report went
to print, Robertson’s decision remains on appeal
to the Supreme Court.

The Military Commissions
In the uproar over the administration’s military detention policies post-9/11, Gonzales
has also been a strong public advocate of the
president’s plan to try certain al Qaeda and
Taliban operatives in military commissions
(with procedures far more prosecution-friendly than military courts-martial). Moreover, in
defending these military commissions,
Gonzales has repeatedly failed to address the
pressing concerns of the civil liberties and
human rights communities.

Enemy Combatants
Finally, it remains unclear who, precisely,
championed the idea of detaining both citizen
and noncitizen “enemy combatants” out of
reach of criminal due process or international
law. Many commentators believe, however,
that given his influence on matters of national
security, Gonzales must have played a key
role. Indeed, “[i]t was his office that conceived of the term ‘enemy combatant’ as a
way to indefinitely detain American citizens
accused of terrorism...”16

“The suggestion these commissions will
afford only sham justice like that dispensed in
dictatorial nations is an insult to our military
justice system,” he wrote.11 Gonzales failed to
mention, however, that the current system differs markedly in evidentiary standards, insulation from command influence and other key
protections against wrongful conviction than
traditional courts-martial or even the arcane
military commissions of World War II.12 As
conservative columnist William Safire wrote
in response to the above comment, “Many
attorneys friendly to this White House know
that order was egregiously ill drafted. The
White House counsel, Alberto Gonzales,
defended the order on this Op-Ed page by
denying or interpreting away its most offensive provisions.”13

And, in defending the decision to detain Jose
Padilla and Yasser Esam Hamdi, both United
States citizens, as enemy combatants, administration officials stressed that the detentions had
been reviewed and approved at the highest levels of the administration. Gonzales should be
held accountable for taking the extreme position that the executive branch should be able to
unilaterally remove Americans from the reach
of judicial review and subject them to indefinite, incommunicado military detention.
Indeed, in the government’s brief to the
Supreme Court in the Jose Padilla case, counsel notes that the final step in the enemy combatant approval process is review by the White
House counsel’s office.17

A n A C LU R e p o r t

Specific Avenues of Inquiry

the interrogation techniques alleged in
this Red Cross report and the back-andforth, described above, between him, the
Pentagon’s general counsel and the
Office of Legal Counsel at the Justice
Department. These allegations are in
accord with descriptions of physical and
mental coercion in documents obtained
by the ACLU pursuant to its ongoing
Freedom of Information Act lawsuit,
which is seeking government documents
on the abuse of detainees overseas.

Gonzales should be prepared to address the
role he played in each of the matters listed
below, and we urge him to facilitate the release
of the documents mentioned here and listed in
the appendix.
We hope the president and Gonzales would
agree that the gravity of what apparently
occurred in the name of national security presents a public interest of sufficient magnitude to
defeat any claim of executive privilege. In particular, we strongly urge Gonzales to support
the release of any documentation mentioned in
the draft Congressional subpoenas proposed by
Senators Dianne Feinstein (D-CA) and Patrick
Leahy (D-VT) or in the ACLU’s litigation.18


Sometime in late fall 2001, the Justice
Department prepared a memorandum
for the CIA defining “torture” for the
Apparently, it found that the international terrorism convention, to which the
United States is a party, permits a broad
range of questionable tactics, including
sleep deprivation and coercion through
phobias. Reading the language of the
convention narrowly, the memorandum
said that only actions causing “severe
physical or mental pain” were proscribed.19 This memorandum is being
withheld from the public and the Senate.
In late November 2004, the press disclosed a secret Red Cross memorandum
that accuses the Pentagon of using psychologically coercive techniques “tantamount to torture,” and co-opting medical
personnel in the base into helping gauge
the mental and physical states of
detainees during interrogation, a severe
breach of medical ethics.20 Gonzales
needs to address the connection between


In response to the assault on the Geneva
Conventions by the political members
of the defense community, career military lawyers were forced to anonymously consult with Scott Horton, a
human rights lawyer with the New York
City Bar Association. Though they
could only talk in vague terms about
classified information, they told Horton
that Pentagon officials were deliberately trying to create “an atmosphere of
legal ambiguity.” The primary movers
of this effort included, reportedly,
Undersecretary of Defense for Policy
Douglas Feith and General Counsel
Haynes21 (who has been nominated by
President Bush to the 4th Circuit Court
of Appeals).


According to various sources, including the Taguba Report,22 the military
has been complicit in turning certain
detainees in Iraq over to the CIA so that
their existence can be kept secret from
the International Red Cross, in contravention of international law. Defense
Secretary Rumsfeld himself admitted
approving, at the request of thenDirector of Central Intelligence George
Tenet, the sequestration of one of these
“ghost detainees.” It appears not to be
an isolated incident.23

The Civil Liberties and Civil Rights Record of Attorney General Nominee Alberto Gonzales


Finally, we know that President Bush
himself signed a directive authorizing
the creation of a web of secret CIA
detention facilities overseas.24 It has
also been reported that the Department
of Justice officially prepared a memorandum discussing the types of interrogation techniques that the CIA can use
against high-level al Qaeda detainees,
which are presumably even more
aggressive than those used in Iraq,
Afghanistan and Cuba.25 Sources in
another article said that Gonzales,
Haynes and David Addington, Vice
President Cheney’s counsel, discussed
various techniques, and found acceptable the controversial gambit known as
“water-boarding,” in which detainees
are made to believe they are in imminent danger of drowning.26

of investigation30 and the expansion of the special counsel’s jurisdiction into civil or administrative matters,31 and has great discretion in
discipline32 and removal.33 The attorney general
also exercises a limited veto on investigative
steps that he or she deems unwarranted.34
That said, the conflict of interest rules governing a special counsel are actually more stringent than those applicable to the now-defunct
independent counsel.35 However, because the
special counsel reports directly to the attorney
general, who would decide whether a particular
conflict violates Justice Department regulations, there remain openings for impropriety if
the attorney general is partial to a particular
outcome of the investigation.
At the very least, Gonzales must take concrete
steps to erect a firewall around his office to
prevent even the appearance of impropriety.
The need for such a check is made all the more
apparent by the remote, but not inconceivable,
possibility that he himself, or his colleagues in
the White House, played a direct role in authorizing highly coercive interrogation techniques
discussed above in section II. Were such a revelation to come out, Gonzales would be in the
hugely awkward position of having to authorize a criminal investigation against himself or
his close political allies.

See Appendix I for a listing of pertinent material that the government refuses to disclose to
the public and the Senate.

III. The Need for an Independent
Attorney General
Under current law, the primary mechanism for
investigating high-level wrongdoing by the
president, senior officials of the executive
branch or members of Congress is through the
special counsel provisions in the Code of
Federal Regulations.27 The special counsel is to
be appointed when a particular investigation
would pose a “conflict of interest” or when it is
in the “public interest,” and can be invoked by
the acting attorney general if the attorney general has recused himself or herself.28

Such a hypothetical is even more disturbing
given the myriad ways in which the attorney
general could manipulate his discretion over
the special counsel’s office to subtly obstruct
the pursuit of justice.
Additionally, although such a scenario may
seem far-fetched today, note that three of
Bush’s six predecessors have required the
appointment of independent investigators in
response to major presidential scandals. Given
the fact that Halliburton, Enron and the Valerie
Plame affair are all still open investigations,

Though the jurisdiction, scope and practical
power of the special counsel resemble that of
the independent counsel, the attorney general
retains more control. For instance, the attorney
general has the last word on selection,29 ambit

A n A C LU R e p o r t

and that the latter two were expanded shortly
before the 2004 election, it remains a very open
question whether President Bush (and Attorney
General Gonzales) are going to face a scandal
akin to Whitewater or Iran-Contra before the
second term ends.

Bush administration’s abridgments of certain
civil liberties:
Ashcroft has had to adjust to the
fact that there are few decisions
of importance made in the
Justice Department without the
explicit approval of the White
House and its counsel’s office...
As a former senator, he began
negotiating with his old colleagues as to what concessions
might be made to pass what
became the USA Patriot Act...
But when the White House was
informed of his discussions, he
was stunned to be told that he
was not authorized to make
such offers.

Finally, the ACLU is particularly concerned
that the promotion of the White House counsel
to attorney general will impair the Department
of Justice’s ability to conduct full and fair
investigations of possible criminal civil rights
or civil liberties violations.

IV. Civil Liberties Concerns
Gonzales’s civil liberties record is incomplete,
but troubling nonetheless. His time on the
Texas Supreme Court contains some clues as to
how he would approach civil liberties concerns
as attorney general, and reports of his involvement in civil rights and civil liberties issues as
White House counsel provide further details.
The following discussion pieces together as
comprehensive a picture as possible of
Gonzales’s constitutional philosophy.

Even though the legislation centered on the law enforcement
world he headed, Ashcroft was
told that Alberto R. Gonzales, the
White House counsel, and his
deputy, Timothy Flanigan, would
make any major decisions.36

The “Global War on Terrorism” and Domestic
Law Enforcement

Given Gonzales’s apparent proximity to the
drafting of the Patriot Act, we fear he may not be
receptive to the calls on both the left and the
right for certain refinements in the law. Indeed,
former solicitor general Theodore Olson explicitly mentioned that Gonzales would follow
Ashcroft as a “staunch” defender of the Patriot

Attorney General John Ashcroft is often targeted as the main public cheerleader for the broad
expansions of domestic government surveillance and investigative power authorized in the
wake of 9/11. Although he certainly deserves
the criticism he receives, there have been
reports that Gonzales actually makes the final
legal decisions as to what the administration
will approve.

See for more information
on the Patriot Act.

Media reports have indicated that this was
particularly true during the Congressional
negotiations over the USA Patriot Act, the
2001 counterterrorism bill that has become a
rallying cry for the public backlash against the

Hostility to Executive Accountability and
Open Government
Arguably, the greatest legacy of the current
administration will be its unprecedented

The Civil Liberties and Civil Rights Record of Attorney General Nominee Alberto Gonzales

adherence to a strict presumption of secrecy in
its official dealings. Gonzales should face
tough questioning about whether he truly
believes, as his advice to the president suggests, that the president has a duty, for the sake
of national security or to expand the scope of
the executive’s authority, to insulate the office
from its traditional level of accountability.

decisions.”40 Also of note is Gonzales’s lead
role in the aggressive assertion of executive
privilege surrounding public calls for release of
documents pertaining to Vice President
Cheney’s energy policy task force.41
The Death Penalty: The Clemency Memos
During his tenure as governor of Texas, George
W. Bush permitted 150 executions, a record
unsurpassed in recent history.42 He granted
clemency in only one case. Gonzales, his thenlegal counsel, prepared 57 briefs on these
cases, usually presented to the governor on the
morning of the planned execution. The classified documents outlined the facts of the case,
and presented a summary of the arguments for
clemency.43 Though Governor Bush frequently
claimed to agonize deeply over permitting an
execution to go forward, a review of the memorandums by Alan Berlow at Atlantic Monthly
suggested that the reviews were only cursory.44

As the title of Nixon White House counsel
John Dean’s new book suggests, the “secret”
Bush administration has been “Worse than
Watergate” in keeping sunlight out of the West
For instance, on Nov. 1, 2001, the White House
issued an executive order, drafted by Gonzales,
exempting more than 68,000 pages of Reagan
Reportedly, the records involved the private
communications of President Reagan, Vice
President George H.W. Bush and top aides
(some of whom serve currently in the George
W. Bush White House). Gonzales proposed a
series of delays on releasing the Reagan
records to allow President Bush to invoke a
“constitutionally based privilege or take other
appropriate action.”39

The summaries of arguments in favor of
clemency were far less prominent in the memorandums than the details of the crime, and frequently omitted mention of crucial mitigating
factors like contradictory testimony at trial,
inadequate legal counsel and even possibly
exculpatory evidence.45 In addition, Governor
Bush often publicly insulated himself from
criticism by arguing that his clemency powers
were relatively limited. He also claimed he
could not affirmatively recommend clemency
without a finding by the Board of Pardons and
Paroles (BBP), which was — at the time of his
election to the presidency – entirely composed
of his appointees. Presumably, had he any
doubts about an impending execution, he could
have asked the BPP to review the case.46

Though little noticed at the time, the Gonzales
presidential papers order is actually a sweeping
change to open government laws. The current
regime allows records to be kept secret indefinitely, and significantly reduces the checks
placed on executive authority. Prior to the
order, presidential papers were presumed disclosable after 12 years, which historians (and
the ACLU) argue was enough time to protect
executive privilege and reduce any chilling
effect on the candor required in effective executive consultations.

Indeed, as reported by Berlow, Governor Bush
did approach the BPP in the case of Henry Lee
Lucas, and the board recommended (by a vote
of 17 to 1) to commute Lucas’ sentence to life

Gonzales rejected these arguments, saying “the
pursuit of history” should not “deprive a president of candid advice while making crucial

A n A C LU R e p o r t

dismiss the story as totally off-base. It paints a
completely inaccurate picture of a responsibility that then-Governor Bush took very seriously. As governor, the president approached each
and every case in a deliberate and thoughtful
manner and received very sound and thorough
counsel. Judge Gonzales is highly regarded and
well-respected for his experience, integrity and
legal expertise by those who know him.”53

without parole. Reportedly, Governor Bush
recommended commutation because the jurors
“did not know” certain facts when they sentenced Lucas to death.47 Indeed, Lucas had
confessed to a series of murders that he could
not have committed, as he was out of the state
when they occurred. As Berlow notes, the
same standard could have been used to grant
clemency in several other cases that came
across the governor’s desk. Clearly, Gonzales
should have mentioned similar contradictory
evidence in a number of the clemency memos,
but did not.

We urge the Senate to conduct an independent
examination of the clemency memos.
Reproductive Rights

For instance, the memorandum for David
Wayne Stoker failed to mention that a key witness had recanted his testimony against Stoker,
saying that he only testified against him
because the prosecutor threatened to bring a
perjury charge if he did not stick to his story.48
The star witness against Stoker, Carey Todd,
testified at trial that he had received nothing for
implicating Stoker, failing to mention that a
neighboring county dropped criminal charges
against him on the day of his testimony and
that he was paid $1,000 from Crime Stoppers
for implicating Stoker.49

As Texas Supreme Court justice, Gonzales
ruled six times in cases interpreting that state’s
parental notification law. In each, Gonzales
voted with the majority or the plurality – voting to permit a judicial bypass once, deny once
and remand to the trial court four times – and
on each occasion emphasized that he was
deciding the matter based upon strict statutory
construction, rather than out of any personal
belief in the propriety of abortion.
As one opinion he joined stated, “We are not
called upon to decide the constitutionality or
wisdom of abortion. Arguments for or against
abortion do not advance the issue of statutory
construction presented by this case.”54

Also, Stoker’s lead defense counsel later gave
up his law license in the face of disciplinary
sanctions50 and the psychiatrist who triggered
Stoker’s possible death penalty by declaring
the defendant a certain recidivist never even
examined him.51 But, the Gonzales memorandum contains only this passage: “One court
opinion states that the evidence is solely circumstantial. Nonetheless, experts did determine that the .22 Ruger admitted into evidence,
seen in Stoker’s possession by his own brother
within the weeks following the murder, was
actually the murder weapon.”52

The famous charge leveled against Gonzales
by some on the right – that he criticized fellow
justice Patricia Owens for her anti-abortion
views – seems somewhat misplaced. In that
case, Gonzales dismissed a charge that the
majority opinion erred and that “the general
rule of notification should be very rare and
require a high standard of proof,” emphasizing
that he could find “nothing in the statute to
directly show that the Legislature intended
such a narrow construction.”55 He went on to
note that while “the ramifications of such a law
and the results of the Court’s decision here may

To date, the White House continues to summarily dismiss the Berlow story. It issued the
following statement when the story broke: “We

The Civil Liberties and Civil Rights Record of Attorney General Nominee Alberto Gonzales

be personally troubling to me as a parent, it is
my obligation as a judge to impartially apply
the laws of this state without imposing my moral
view on the decisions of the Legislature.”56
That said, Gonzales has made several statements
possibly hinting at his personal stance on abortion rights. “All I’ll say about it is, how I feel
personally may differ with how I feel about it
legally.... It’s the law of the land,” he said in
2001.57 Given these ambiguities, Gonzales
should also be asked if he played any role in the
issuance of an executive memorandum on the
first day of Bush’s presidency restoring the ban
on funding by the U.S. Agency for International
Development for international groups that advocate or provide counsel on abortion.
Affirmative Action
Gonzales’s record on equal opportunity programs could be seen as both promising and
troubling. Though he was intricately involved in
drafting the administration’s briefs in the two
University of Michigan admissions cases decided by the Supreme Court in 2003, Gonzales
apparently sought to weaken the language.58
After Gonzales started “carving up” Solicitor
General Theodore Olson’s language, Olson had
“pangs of conscience in accepting it.”59 The
result was a brief opposing the admissions policy, saying it looked too much like quotas, but
supporting race-conscious diversity measures.
We urge Gonzales to clarify his personal position on the use of race-conscious equal opportunity programs to increase diversity, remedy
ongoing discrimination or end the continued
ramifications of past discrimination.
The Bush Administration’s Support for the
Federal Marriage Amendment
Gonzales’s personal stance on discrimination
based on sexual orientation is unclear.

However, in discussing the administration’s
consideration of the Federal Marriage
Amendment (“FMA”), Bush announced in
August 2003 that he had assigned “lawyers” to
examine the different legislative approaches to
banning same-sex marriage.60 Although
President Bush did not identify Gonzales as
one of the assigned lawyers, the Senate
Judiciary Committee ought to explore
Gonzales’s role on the issue.
On Feb. 24, 2004, Bush called for a constitutional amendment in “defense” of marriage.
Though he and his spokesman, Scott
McClellan, did not endorse a particular formulation, McClellan did mention the amendments
introduced by Rep. Marilyn Musgrave (R-CO)
and Sen. Wayne Allard (R-CO) in their respective chambers. Gonzales, who may have been
responsible for the legal vetting of the different
amendatory approaches, should make clear his
position on the Musgrave-Allard amendments,
which would bar all marriage rights for samesex couples, and would likely ban civil unions
as well.
Notably, the Musgrave-Allard amendment, as
originally introduced, would have defined
marriage as exclusively between a man and a
woman, and would have stipulated that
“[n]either this [United States] constitution or
the constitution of any state, nor state or federal law, shall be construed to require that
marital status or the legal incidents thereof be
conferred upon unmarried couples or
Though the federal marriage amendment was
defeated soundly in both chambers of
Congress, the administration’s opposition to
equal marriage rights, as well as its efforts to
weaken existing protections, for gay and lesbian Americans remain strong.
We urge Gonzales to clarify his views.

A n A C LU R e p o r t

on race, religion, color or national origin. The
order represented both the first concrete victory of the modern civil rights movement and the
beginning of a now long-standing policy prohibiting organizations and contractors that discriminate against others from receiving federal
tax dollars.

During his tenure as Texas secretary of state,
Gonzales made a series of encouraging statements on immigration (usually coupled with
appeals against economic protectionism).62 As
White House counsel, he has been a key backer
of the president’s guest-worker plan. While the
Senate should aggressively explore his views
on discriminatory border control programs like
the National Security Entry-Exit Registration
System (“NSEERS”), Gonzales should also be
applauded for resisting the hard-line antiimmigration sentiment in certain sectors of

On Dec. 12, 2002, however, President Bush
signed Executive Order 13279, which expressly rolled back many of the anti-discrimination
regulations and policies that had grown out of
the Roosevelt order.65 The ostensible goal was
to enforce the “equal protection” of religious
organizations in federal contracting. The practical effect, however, is that it provides religious groups with the right to discriminate
against current and potential employees based
on religion.66

As secretary of state, Gonzales wrote an editorial for The San Antonio Express-News blasting
an INS pilot program – similar, interestingly, to
the current national entry-exit screening program known as US Visit – that would track
cross-border movements in Eagle Pass, Texas.

The Bush order comes after a decade of litigation by special interest groups claiming a right
to fire people based on religious doctrine.67 The
implications of the Bush order, however, go
beyond just these cases. The order implicitly
rejects the reasoning of the Supreme Court’s
holding in Bob Jones University v. United
States, 461 U.S. 574 (1983), which removed
the university’s tax-exempt status because of
overt racial discrimination justified by religious precepts.

Pointing to the tens of thousands of pedestrians
crossing between Mexico and the United States
every month, Gonzales wrote, “I find it hard to
believe that this new Departure Management
System will be able to successfully track
undocumented immigrants without burdening
U.S. citizens and legitimate visitors.”63 He even
went so far as to call the burdensome identity
requirements “Big Brotherish.”64

The Senate should question Gonzales on the
2002 executive order, which was promulgated
on his watch.

We hope that Gonzales’s relatively moderate
perspective on immigration will lead him to an
immigration policy that respects the civil liberties of immigrants.

V. Conclusion
Given the extensive powers seized by the executive branch in the aftermath of 9/11, and the
eminent role the attorney general plays in that
branch, the Senate should do all in its power to
analyze the qualifications and positions of
nominees to the post in order to ensure that the
proper person is placed in that job. Gonzales

The Bush Administration’s Faith-Based
More than 60 years ago, on June 25, 1941,
President Franklin D. Roosevelt signed the first
executive order (No. 8802) prohibiting federal
defense contractors from discriminating based

The Civil Liberties and Civil Rights Record of Attorney General Nominee Alberto Gonzales

appears to be a committed friend to the administration, and he has amassed an extensive
record as an attorney and jurist.
Gonzales’s personal stance on core civil liberties
matters will play a critical role in his efforts to
balance the need for effective law enforcement

and national security with the need for individual freedoms and privacy. Unfortunately, his
personal feelings on these matters are largely a
subject for speculation, though the evidence that
does exist is not heartening.
We respectfully urge the Senate to dig deeper.

Appendix I: Documents that should be released publicly
Select list of undisclosed documents referenced in news articles, government memoranda and
1. Memo from DOJ to CIA providing guidance on permissible interrogation techniques
and specifically authorizing “water-boarding” (Aug. 2001)
2. Presidential Order authorizing CIA to set up series of secret detention facilities (late 2001)
3. Memorandum from William Howard Taft IV, Department of State, responding to the
January 9, 2002 Yoo/Delahunty memo on the applicability of the Geneva Conventions to
Taliban and al Qaeda detainees (Jan. 11, 2002)
4. Memorandum from James C. Ho, Attorney-Advisor, OLC, to John Yoo, Deputy
Assistant Attorney General, OLC, re: interpretation of Geneva Conventions’ Common
Article 3 (Feb. 1, 2002)
5. EC summarizing FBI’s concerns about DOD’s interrogation methods (May 30, 2003)
6. Cable from CIA agency station in Baghdad to CIA HQ expressing concern about certain interrogation techniques used by DOD (July, 2003)
7. Memo from Lt. Gen. Sanchez permitting high-pressure interrogation techniques at AGP
(Sept., 2003)
8. Documents relating to CIA’s request that DOD hold certain detainees without registering them on prison rolls (Oct.-Nov., 2003)
9. Memo from Lt. Gen. Sanchez to MI personnel at AGP re: Interrogation rules of engagement (Oct. 9, 2003)
10. Memo from DOJ re liability of interrogators under CAT and Anti-Torture Act when
prisoner not in U.S. custody (date unknown)


A n A C LU R e p o r t


Memorandum from White House Counsel Alberto
Gonzales to President George W. Bush (Jan. 25, 2002),
available at
week (agreeing with Justice Department determination
that Geneva Conventions protections do not apply to persons held in the conflict against al Qaeda and the Taliban.)

In particular, this report lists a series of documents pertaining to post-9/11 military detentions that remain withheld, but would shed initial light on the abuses of power
that led, among other things, to the now infamous activities at Abu Ghraib prison in Baghdad. The ACLU calls
on the president to affirmatively release these documents
on matters of such public import.


OFFICE ii (1985),

Memorandum from John C. Yoo, Deputy Assistant
Attorney General, and Roger Delahunty, Special
Counsel, Office of Legal Counsel, Department of
Justice, to William J. Haynes, General Counsel,
Department of Defense, on the “Application of Treaties
and Laws to al Qaeda and Taliban Detainees” (Jan. 2,
2002), available at:
5025040/site/newsweek; see also, Memorandum from
Jay S. Bybee, assistant attorney general, Office of Legal
Counsel, to White House counsel Alberto Gonzales and
Defense Department General Counsel William J. Haynes
on “Application of Treaties and Laws to al Qaeda and
Taliban Detainees” (Jan. 22, 2002), available at:

John Barry et al., The Roots of Torture, NEWSWEEK,
May 24, 2004, at 26.


Gonzales, supra note 1, at 2.

Department general counsel, Re: Possible Habeas
Jurisdiction Over Aliens Held In Guantánamo Bay, Cuba
(Dec. 28, 2001).

Rasul v. Bush, 542 U.S. ___, 124 S.Ct. 2686, 2698 (2004).


Barry, supra note 5, at 30.


Alberto R. Gonzales, Martial Justice, Full and Fair,
N.Y. TIMES, Nov. 30, 2001, at A27.


(2004), available at:


William Safire, Voices of Negativism, N.Y. TIMES, Dec.
6, 2001, at A35.


Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C.
2004), petition for cert. filed, 73 U.S.L.W. 3338 (U.S.
Nov. 22, 2004) (No. 04-702).


Id. at 3.

Elizabeth Bumiller, The Office Where Law Meets War,
N.Y. TIMES, Sept. 23, 2002, at A22.


Brief for the Petitioner at 7, Rumsfeld v. Padilla, 542
U.S. ___, 124 S.Ct. 2711 (2004) (No. 03-1027).


See Helen Dewar, GOP Senators Block Subpoena on
Memos But Prod White House, WASH. POST, June 18,
2004, at A23; ACLU Torture FOIA Landing Page, at:

Barry, supra note 5, at 30.

Neil A. Lewis, Red Cross Finds Detainee Abuse at
Guantánamo, N.Y. TIMES, Nov. 30, 2004, at A1.

Barry, supra note 5, at 32.


Id.; see also the Convention Relative to the Treatment
of Prisoners of War, Oct. 21, 1950, 6 U.S.T. 3517, Art. V
(“Geneva Convention III”) (stipulating that belligerent
detainees “shall enjoy the protection of the present
Convention until such time as their status has been determined by a competent tribunal.”)

(2004) (“The Taguba Report”), available at:



Memorandum from John C. Yoo and Patrick Philbin,
Deputy Assistant Attorneys General, Justice Department
Office of Legal Counsel, to William J. Haynes, Defense


Eric Schmitt and Thom Shanker, Rumsfeld Issued an
Order to Hide Detainee in Iraq, N.Y. TIMES, June 17,
2004, at A1.


The Civil Liberties and Civil Rights Record of Attorney General Nominee Alberto Gonzales

Barry, supra note 5, at 31. See also Dana Priest and
Barton Gellman, U.S. Decries Abuse But Defends
Interrogations; ‘Stress and Duress’ Tactics Used On
Terrorism Suspects Held in Secret Overseas Facilities,
WASH. POST, Dec. 26, 2002, at A1.


See Robert Novak, The Arrogance of Power; Bush
White House is Carrying on with Same Pretensions of
Executive Privilege Clinton Hid Behind, CHIC. SUN
TIMES, Jan. 21, 2002, at 23.


Toni Locy and John Diamond, Memo Lists Acceptable
‘Aggressive’ Interrogation Methods, USA TODAY, June
28, 2004, at A5.
Michael Hirsh et al., A Tortured Debate: Amid Feuding
and Turf Battles, Lawyers in the White House Discussed
Specific Terror-Interrogation Techniques Like ‘WaterBoarding’ and ‘Mock Burials,’ NEWSWEEK, June 21, 2004.


See General Powers of Special Counsel, 28 C.F.R. §
600.1-600.10 (2004).


Alan Berlow, The Texas Clemency Memos, ATL.
MONTHLY, July/Aug. 2003, at 91.


They are available online at:


Berlow, supra note 42, at 93.


Id. at 92.


Id. at 93.




Id. at 94.

Id. at § 600.1.


Id. at § 600.3(b) (requiring the attorney general to
“consult” with the assistant attorney general for

Id. at § 600.4.


Id. at § 600.4(c).


Id. at § 600.7(c).


Id. at § 600.7(d).


Id. at § 600.7(b).


Steve Mills et al., GW Bush Has Executed 131 Inmates
– Many With Seriously Flawed Trials, CHIC. TRIB., June
11, 2000, at 1.




Berlow, supra note 42, at 94. Indeed, the psychiatrist
was actually Dr. James Grigson, nicknamed “Dr. Death,”
who was expelled from the American Psychiatric
Association subsequent to the Stoker case because his
expert testimony was found to be repeatedly unethical.


Compare 28 C.F.R. § 600.7 (imposing Department of
Justice ethics rules on special counsel) with 28 U.S.C. §
594(i) (2003) (establishing different conflict rules for
independent counsel).

See, e.g., Memorandum from Alberto R. Gonzales to
Governor George W. Bush Re Schedule Execution of David
Wayne Stoker # 892 on Monday, June 16, 1997, at 6:00 pm
(June 16, 1997) (at:


Neil A. Lewis, Ashcroft’s Terrorism Policies Dismay
Some Conservatives, N.Y. TIMES, Feb. 24, 2002, at A1.


Theodore B. Olson, An Excellent Choice; Senate
Should Confirm Alberto Gonzales, WASH. TIMES, Nov.
15, 2004, at A21.


George Lardner Jr., Bush Clamping Down on
Presidential Papers, WASH. POST, Nov. 1, 2001, at A33.


Adam Clymer, Government Openness At Issue as Bush
Holds Onto Records, N.Y. TIMES, Jan. 2, 2003, at A1.

Morning Edition (National Public Radio broadcast,
June 27, 2003).


In re Jane Doe, 19 S.W.3d 249 (Tex. 2000).


In re Jane Doe, 19 S.W.3d 346, 365 (Tex. 2000).


Id. at 366.


Chitra Ragavan, Bush’s Legal Eagle, Rising with the
Son, U.S. NEWS AND WORLD REPORT, Mar. 12, 2001, at 31.


Robert Novak, [ White House Counsel Alberto
Gonzales...], CHIC. SUN TIMES, Jan. 23, 2003, at 31.


A n A C LU R e p o r t



Doug Ireland, Republicans Relaunch the Anti-Gay
Culture Wars, THE NATION, Oct. 20, 2003, at 18.


H.J. Res. 56, 108th Cong. (2003); S.J. Res. 26, 108th
Cong. (2003).
Alberto Gonzales, Mexico-Europe Trade is No Threat
to Texas, DALL. MORN. NEWS, Jan. 18, 1998, at 6J.


Alberto Gonzales, Comment: INS Pilot Program
Unfair to Eagle Pass Residents, SAN ANT. EXP. NEWS,
Mar. 2, 1998, at 9A.


Exec. Order No. 13,279, 67 Fed. Reg. 77,139 (Dec. 16,


Id. at § 4.


See, e.g., Boyd v. Harding Academy of Memphis, Inc.,
88 F.3d 410 (6th Cir. 1996) (permitting a religious school
to dismiss an unmarried pregnant teacher for having premarital sex); Little v. Wuerl, 929 F.2d 944, 951 (3rd Cir.
1991) (permitting a religiously affiliated school to fire a
teacher who failed to have her marriage annulled properly); Hall v. Baptist Memorial Health Care Corp., 215
F.3d 618, 625 (6th Cir. 2000) (upholding a religious
school’s dismissal of a school counselor after she
achieved a leadership position in a church that accepted
gay and lesbian members).