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News analysis

New confirmation hearings could shine light on secrets

By Peter S. Canellos
Globe Staff / August 28, 2007
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WASHINGTON -- The departure of Attorney General Alberto Gonzales could unlock the Bush administration's legal closet, bringing new details tumbling into the open about issues including the treatment of terrorism suspects, warrantless surveillance of Americans, and the administration's definition of official secrets.

Democratic senators have been awaiting the prospect of confirmation hearings for a new attorney general to extract more information about Bush's expansive use of presidential power in wartime. Meanwhile, some observers are suggesting that Bush could avoid some of the scrutiny by delaying his appointment of a successor to Gonzales and relying on acting attorney general Paul Clement to carry out Gonzales's policies.

The stakes are extremely high, because the Justice Department regularly reviews Bush's assertions of presidential power, including secret programs associated with the war on terrorism.

"Whether he decides to wait on making an appointment or not will be a political calculation," said Boston University Law School Dean Maureen O'Rourke. "He might want to avoid the bruising confirmation fight."

Bush, who yesterday declared that Gonzales was the victim of a political vendetta, is clearly unhappy to be facing an opening at the top of the Justice Department with only a year and a half left in his tenure.

The president's options are limited. The Democrat-controlled Senate is unlikely to confirm another White House loyalist to be the nation's top law enforcement officer, and any figure with enough independence to be confirmed is likely to insist on conducting his or her own review of Gonzales's policies.

Keeping Clement, a longtime aide to former attorney general John Ashcroft and the current solicitor general, in charge of the department would sidestep a confirmation battle but inflame the already furious Senate and House Judiciary committees.

"As head of the department, [Clement] would still be accountable to Congress," said Mark Agrast, a former Judiciary Committee aide to US Representative William D. Delahunt of Quincy. "Congress is going to insist on real oversight."

The battles between Bush and the Senate Judiciary Committee, in particular, have been fierce, with the White House refusing to comply with subpoenas for certain types of information and for testimony by certain Bush aides. The president has said the information requested by Congress is shielded by his executive privilege.

Most of the recent disputes between the White House and Congress have centered around the Justice Department's decision last year to replace nine US attorneys in the middle of their terms. Some Democratic senators have said some prosecutors were fired because they were either pursuing cases against Republican politicians or had resisted entreaties from Republicans to pursue cases against Democrats.

Such political interference in the wheels of justice would be improper, and Democrats have tried to determine whether Gonzales, then-White House counsel Harriet Miers, or presidential adviser Karl Rove had pushed for the firings for political reasons.

The White House has denied any wrongdoing, and many Republicans have argued the investigation is motivated by a desire to embarrass the president.

But when internal memos appeared to contradict Gonzales's claim that he was only peripherally aware of the firings, some GOP senators joined the Democrats in condemning Gonzales. And members of both parties expressed concern that Gonzales's loyalty to Bush was coloring his decisions on a broad range of issues.

"It's all wrapped up together," said Agrast, referring to both the firings of the US attorneys and concerns that Gonzales had provided too little oversight of Bush's policies in the war on terrorism.

From his days as White House counsel to his two years as attorney general, Gonzales was quick to adopt expansive theories of a president's wartime prerogatives. Most famously, he visited the hospital room of his predecessor as attorney general, John Ashcroft, to try to persuade him to sign an order authorizing domestic spying.

Since then, the administration has agreed to bring its surveillance program under court supervision and Supreme Court decisions have reined in Bush on his treatment of detainees. Last year, Congress passed a bill banning the use of torture in questioning prisoners.

Still, Bush has said in signing statements that such laws infringe on his powers as commander in chief. The precise boundaries of Bush's wartime authority -- and how he's using it -- remain unknown except to a circle of administration lawyers. That's the information Democrats want to get from any new attorney general.

"At the end of the day, the fear [for the administration] would be exposure of something that's potentially embarrassing or, in the worst case, potentially illegal," said O'Rourke.

The president has long maintained that his policies are not only legal, but also essential to protect the nation from terrorism. And for 6 1/2 years, Alberto Gonzales provided the legal cover necessary to pursue them.

Now, Gonzales is leaving, and the cover is in danger of coming off.

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