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Alberto Gonzales, picked by President George Bush to be the next attorney general, doesn’t have any law enforcement experience. But Gonzales, the White House counsel, has a close relationship with Bush, and that apparently matters more to the president. Asked to describe the 49-year-old Gonzales, one former Bush administration official said simply, “His most important quality is his complete loyalty to the president. That is his primary characteristic. Everything he does is informed by this loyalty.” Some observers say that Gonzales’ devotion to Bush could have drawbacks, however. At press time the Senate was expected to hold confirmation hearings on him in January. If Gonzales is approved for AG, he may be called on to oversee probes of other Bush administration officials, a potentially awkward task for someone so dedicated to the president. The U.S. Department of Justice has already undertaken several politically charged investigations, including a probe into the leak of a Central Intelligence Agency operative’s name. The department is also conducting an inquiry into alleged fraud at Halliburton Corp., the energy giant formerly headed by Vice President Dick Cheney. Legal experts say the demise of the independent counsel statute in 1999 heightens the potential for conflicts by eliminating an avenue for criminal investigations outside the control of the attorney general. “I think there could be serious appearance problems,” says Charles Tiefer, a professor at the University of Baltimore School of Law. “If there is a question of a potential crime at the White House, it’s going to be a personal call by Gonzales.” Under the independent counsel law, cases that presented conflicts of interest were handled by an outside lawyer named by federal judges. In the current setup, these matters are handed over to a special prosecutor chosen by and answerable to the attorney general. Because the special prosecutor is an employee of the executive branch, an investigation can be susceptible to political pressure and manipulation. That’s what happened when President Richard Nixon ordered then�attorney general Elliot Richardson to fire special counsel Archibald Cox in 1973, during the early days of the Watergate scandal. Although Richardson resigned rather than comply, Cox was ultimately fired by Solicitor General Robert Bork in the infamous “Saturday Night Massacre.” The friendship between Bush and Gonzales goes back a decade. Bush, then serving as Texas governor, picked Gonzales, then a partner at Vinson & Elkins, to be his general counsel in 1995. Two years later Bush named Gonzales to the post of Texas secretary of state, and the next year appointed him to the Texas Supreme Court. In 2001 Bush brought Gonzales to D.C. as White House counsel. After nominating Gonzales for the AG post, the president picked Harriet Miers to be the new White House counsel. Supporters say the personal relationship that Gonzales has with the president is no cause for concern. “If there is one thing the White House counsel learns in his job, it’s where the line of propriety is,” says Bradford Berenson, a former White House associate counsel and now a partner in the D.C. office of Sidley Austin Brown & Wood. The president nominated Gonzales after Attorney General John Ashcroft decided to step down. Ashcroft was a polarizing member of the Bush Cabinet, but unlike Gonzales, he was not perceived as beholden to the president. Instead, Ashcroft was treated as an outsider. During his tenure, Justice Department concerns were often overshadowed by Pentagon priorities. For instance, Ashcroft privately opposed a Defense Department policy that indefinitely denied counsel to U.S. citizens held as enemy combatants. However, he failed to persuade the White House to adopt a more tempered position. The access that Gonzales has to the president may make him a stronger advocate for the institutional interests of the Justice Department, some say. “The problem with the last attorneys general is that they were basically frozen out of critical decisions,” says Bruce Fein, a former Justice Department official. Now a partner at Fein & Fein in D.C., he adds, “You’ve got to have that level of trust. Otherwise the attorney general isn’t there to influence major decisions.” But to the administration’s critics, there has never been a greater need for independence and impartiality at the Justice Department. Questions have already been raised about the role that Gonzales had in crafting guidelines for the detention and interrogation of prisoners. In January 2002 Gonzales wrote a memo recommending that the Geneva Conventions not be applied to captured Taliban and Al Qaeda members. Gonzales also requested a legal opinion from the Justice Department’s Office of Legal Counsel that seemed to condone the use of torture. Critics say the internal memos contributed to a lawless culture in the military that led to the torture of Iraqi detainees at the Abu Ghraib prison. Law professor Tiefer says the prisoner abuse illustrates the president’s need for independent legal advice. In Tiefer’s view, the legal opinions on the treatment of detainees are an example “of how the president might be better served by counsel that made him aware of the consequences and downsides of a position that initially looks politically convenient.”

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