Wednesday, July 11

Bush officials rediscover Reagan's trick - to avoid perjury charges, claim incompetence

How Alberto Gonzales' incompetence became a defense for his wrongdoing.

By Dahlia Lithwick
Posted Tuesday, July 10, 2007, at 6:00 PM ET

A few months ago, just after Alberto Gonzales turned in about the most dismal performance in the history of Senate testimony, I observed that he might have—oddly enough—done just what his boss had expected of him. Musing over his lame defenses for the partisan firings of nine U.S. attorneys—defenses ranging from "I had no idea what my subordinates were doing" to "I can't recall my middle name" to "I didn't actually bestir myself to prepare for this hearing"—it occurred to me that Gonzales was the perfect attorney general for this administration. Way better, really, than John Ashcroft.

Viewed in that light, Gonzales' performances in the House and the Senate this past spring were in fact a tour de force. Why? Because if you accept as truth the great myth of the Untouchable Unitary Executive—and Gonzales surely does—it must also be true that the highest form of fealty to that Unitary Executive is to thwart congressional oversight any way you can. If you must behave like Beavis or Butthead in order to achieve that constitutional effect, so be it. Alberto Gonzales has it in him.

Which brings us to today's news. In April 2005, Gonzales testified before the Senate that "there has not been one verified case of civil liberties abuse" as a consequence of expanded FBI powers under the Patriot Act. We now learn that at the time, he was in possession of at least six FBI reports detailing unlawful surveillance, searches, and improper use of national security letters. It's tempting to write off Gonzales' failure to admit to these numerous abuses as yet another punch line. "Ooopsy. Lied again." Heh heh. Shrug. But at least grant that Gonzales' buffoonery serves a larger Bush administration purpose. His dereliction of duty takes our minds off the real story: the extent of the damage he and Bush have done to the Justice Department in a few short years.

In the Washington Post report on the memos Gonzales should have seen before he testified in 2005, the DoJ offers two painful attempts to explain Gonzales' misleading testimony: DoJ spokesman Brian Roehrkasse first claims that at the time Gonzales testified, "he was speaking 'in the context' of reports by the department's inspector general before this year that found no misconduct or specific civil liberties abuses related to the Patriot Act." Somehow, prior inspector general reports of no wrongdoing rendered the FBI reports of wrongdoing invisible. Gonzales' lack of candor, then, is justified because "the statements from the attorney general are consistent with statements from other officials at the FBI and the department." It's not that Gonzales was lying. It's just that everyone was lying.

The more fantastic defense, however, comes from other Justice officials who "could not immediately determine whether Gonzales read any of the FBI reports in 2005 and 2006." That is to say, perhaps Gonzales did not perjure himself because he may not have bothered to read the reports in the first place, or to inform himself—prior to his congressional testimony about the impact of the Patriot Act on civil liberties—about the impact of the Patriot Act on civil liberties.

It's difficult to ascertain the precise moment in the Bush administration in which confessing not to have been doing one's job at all became the best defense against the claim that one did one's job badly. But given the choice between admitting to perjury or incompetence, you can bet that Gonzales will easily, indeed gleefully, cop to the latter. From the very beginning of the U.S. attorney scandal, he has admitted to being checked-out, hands-off, apathetic, and incurious. It's enough to have gotten him fired from a job at Dairy Queen, yet all part of a day's not-work, it seems, from the perspective of the White House.

Does it really serve this administration's interests to have a self-confessed incompetent leading its Justice Department? How so? That's the enduring mystery here. But more and more the theory seems to be that if Gonzales couldn't be bothered to do his job at all, he really cannot be faulted for the things that went horribly wrong. At the end of it all, the bargain the president seems always willing to accept is a tragic one: The lunatics are running the asylum, but at least the asylum is all his.
Dahlia Lithwick is a Slate senior editor.

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