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Saturday, Nov 7, 2009
When Alberto Gonzales briefed George W. Bush on the cases of Texas death row inmates up for clemency, his memos were so shabby they seemed intended solely to make it easy for Bush to send prisoners to their deaths.
Jan 6, 2005 | Now that conventional wisdom has focused attention on "moral values" as our paramount national concern, it might be worth spending a few minutes considering how President Bush's nominee for attorney general, Alberto Gonzales, dealt with one of those values -- human life -- on 57 occasions.
Gonzales' values, to say nothing of his legal judgment, have come in for scrutiny of late due in part to his supposedly aggressive questioning of homeland security nominee Bernard Kerik (which failed to uncover extramarital affairs, unpaid taxes on an illegally employed nanny, a warrant for his arrest related to unpaid condo fees, and alleged links to organized crime), as well as to two highly controversial memoranda Gonzales authorized for Bush that laid out the case for torturing prisoners taken in the "war against terrorism." Whether Gonzales' central role in designing policies that may have led to the abuses at Abu Ghraib and other military facilities should disqualify him for the job of attorney general will be a major focus of his Senate confirmation hearing set to begin Thursday morning.
In addition to questioning Gonzales about when he thinks it's appropriate to torture people, Judiciary Committee members might want to ask Gonzales when he thinks it's appropriate to kill them. A sizable body of evidence on that subject has been extracted from the Texas State Archives, the repository of the gubernatorial records of George W. Bush, and these documents suggest that Gonzales didn't give the subject the kind of thought one might expect of a man burdened with a mantle of moral values. As governor of Texas, Bush acted as the court of last resort for 153 men and women, the last public official standing between them and the executioner. On 152 occasions Bush opted for death, and for 57 of those decisions he relied almost exclusively on briefings prepared by Gonzales -- briefings that appear to have been designed, above all, to facilitate the governor's predisposition for execution.
Now, some people will no doubt take umbrage at the suggestion that the final appeal of a condemned murderer raises serious questions about the value of human life. When one considers, however, that 117 innocent people have been found on the nation's death rows, including eight in Texas (the most recent on Oct. 6, 2004), the moral imperative of executive clemency comes into sharper focus. An examination of Bush's public statements suggests that he understood clemency to be a profound moral obligation, at least in the abstract. Bush called clemency "an awesome responsibility" and said he personally acted "as a fail-safe -- one last review to make sure there is no doubt the individual is guilty and that he or she has had the due process guaranteed by our Constitution and laws." Bush also said on numerous occasions that he had "no doubt" that every person executed in Texas under his watch satisfied those criteria.
But how did the man who was to become the nation's moralizer in chief erase all doubt of the inmates' guilt? Why was Bush so certain that he hadn't executed an innocent and that all of those executed had received due process from the courts? And how does Gonzales figure into this sense of self-certainty? At the time, few people questioned Bush's claims, although they seemed transparently suspect. Anyone who has grappled with the intricacies of an even moderately complex death penalty case knows that it can be a Herculean undertaking, requiring an enormous investment of time and mental effort that frequently leads into a cul-de-sac of uncertainties. Add to that the sheer volume of cases Bush had to consider -- as many as two executions a week, as many as eight in a single month -- and the holy grail of certitude would seem even more of a reach.
We now know that Bush's repeated assurances of certainty and thoroughness were patently untrue. And we have more than a modicum of certainty about this because we have access to Bush's daily appointment logs -- which show that he rarely spent more than 30 minutes on an execution briefing -- and we have Gonzales' own files, which show that he did not send Bush a clemency petition laying out a defendant's best arguments for a pardon on even one occasion. Most important, we have Gonzales' actual execution case summaries on which Bush relied in making his decisions to proceed with more than 99 percent of the death warrants that landed on his desk.
Gonzales' memos, running anywhere from three to seven pages, are, in many cases, so slapdash, incomplete and inaccurate that no one relying on them could possibly make a fair, balanced and intelligent decision as to whether clemency should have been a consideration. Anyone relying solely on Gonzales' briefings would have probably done exactly what Bush did -- put a little black check next to the word "Deny" at the end of the summary and send the offender to his death. True, Gonzales and his staff of lawyers were handling an unprecedented number of executions. But Gonzales' omissions appear less the oversights of overworked attorneys than the deliberate design of a lawyer who knew what his client wanted -- an open-and-shut argument for execution -- and was all too happy to deliver.
How otherwise might one explain Gonzales' summary of the Terry Washington murder case? Washington was executed on May 6, 1997, for the murder of Beatrice Huling, a 29-year-old mother of two. Huling was stabbed 85 times and nearly eviscerated. For many people those facts alone would be sufficient to fry Washington. But Bush seemed to set forth a higher moral standard of review. In his autobiography, "A Charge to Keep," he wrote that he wanted to be informed if "there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair."
