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A Tale of Two Lawyers

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In the end, the legacy of the Bush era will be this: that no act of nobility or decency goes unpunished if it casts the leader in a bad light, nor will any venal or criminal deed of an acolyte go unshielded if it is true to the will of the leader.

Let us consider the cases of Attorney General Alberto Gonzales and Lieutenant Commander Matthew Diaz, for taken alone they tell us much about the spirit that invests the temples of our government in Washington, how it behaves and how it shapes the lives of citizens in our country today.

Our story involves two lawyers, both of humble and difficult origins who overcame great adversity to make a career for themselves in the law.

Gonzales, the grandchild of illegal immigrants who came to South Texas from Mexico, began his career as an NCO in the Air Force and used his GI Bill benefits to secure higher education. His father went from job to job as a construction worker, and as a child he knew want and uncertainty. Gonzales went to the Air Force Academy as a cadet and then transferred to Texas’s elite Rice University in Houston, and then on to Harvard Law School. After graduating, he went to one of Houston’s best known law firms, where he developed a single critical client relationship: with George W. Bush. He became Bush’s counsel and was appointed by Bush to the Texas Supreme Court. He then followed Bush to Washington as his counsel in the White House. The relationship with Bush defined Gonzales’s career as a lawyer.

Matthew Diaz, the son of a healthcare worker, grew up in Topeka, Kansas and California in conditions of poverty and uncertainty. He dropped out of high school in the eleventh grade and enlisted in the United States Army and served for eight years, earning a high school GED. After leaving the Army in 1991, he entered law school and then began a career as a Navy JAG. In 2004, he was assigned for a six-month stint as a staff judge advocate in Guantánamo. The relationship with the uniformed services defined his career.

In the spring of 2004, Alberto Gonzales coordinated efforts to introduce a system of domestic surveillance which violated the provisions of a federal criminal statute, the Foreign Intelligence Surveillance Act of 1978, by providing for the interception of communications of American citizens without a warrant. The proposal was reviewed and rejected as unlawful by the Justice Department. After being rebuffed by the acting Attorney General, James Comey, Gonzales traveled during the night of March 10, 2004 to visit Ashcroft in his hospital room at George Washington University Hospital. There he roused Ashcroft and discussed the program with him, trying to secure his signature to authorize continuation of the program. The program was a highly classified national security measure using extremely sensitive signals intelligence. Discussion of the program outside of specified secured locations is a violation of national security rules. Gonzales broke those rules, as Time magazine has noted. We do not know the extent to which Gonzales’s breach of security guidelines resulted in a compromise of national security. We do know that persons who were not authorized to hear classified information were present and we know, thanks to a clarification provided by the White House, that the matters discussed were of the most sensitive nature. Ashcroft rebuffed Gonzales’s overture and stood by his decision that the program could not be authorized.

In January 2005, Diaz was coming close to the end of his term at Guantánamo. He was aware that a lawyer with a New York City law firm had been seeking the names of the detainees at Guantánamo, with the express purpose of recruiting habeas corpus counsel for them. He was aware that the Supreme Court had ruled, in Rasul v. Bush, that habeas corpus petitions were available – and in the process had sharply overruled the major rationale on which the Pentagon had denied access to them; he was also concerned that the conditions in which the detainees were held were unlawful. The Supreme Court later validated that concern as well, with its ruling in Hamdan. Diaz then printed out a list of the 500-odd prisoners, put it in a card, and mailed it to the lawyer who had requested the information. He knew that the information was not classified, as indeed it could not be since under law, the Pentagon had been required to furnish it to the Red Cross, and did so.

Diaz was charged with “passing classified information” with an “intention to harm the United States.” The prosecution’s contention that the information is classified is based on the presence of indecipherable codes in a single field of the sheets which, according to the prosecution, signal information as to the interrogation teams assigned to the prisoners. This information was divulged for the first time by the prosecution, not Matthew Diaz, and the information standing alone is meaningless. Moreover, many observers have expressed substantial doubt whether the prosecution’s claims are even true. And in any event, the information was not disseminated and did not cause harm to the United States, since the list was turned over by the lawyer in question to a court security officer.

One year later, a United States District Court issued an order compelling the Department of Defense to disclose the information to the Associated Press. It has since been published.

In sum, Gonzales and Diaz have similar military backgrounds and are accused of comparable national security breaches. The violation by Gonzales is far more severe by every measure – both as to the nature of the information transmitted and the gravity of the violation, and the fact that it was pursued as part of an overall criminal enterprise, namely the systematic circumvention of FISA. In the case of Diaz, it is highly doubtful that the violation ever involved classified information – and the prosecution’s claims in that regard seem to be hyperventilation at best. The United States also had no national security interest in keeping the names of the detainees secret, and indeed, had already divulged them to the Red Cross (as it had been required by law to do) before the transmittal occurred.

Yet today, Diaz stands convicted by a court martial and sentenced to six months in prison. Gonzales remains as Attorney General of the United States, a position he has wielded – in violation of basic ethics rules – to frustrate every effort to undertake a serious investigation of his potentially criminal conduct.

It seems to me that a reasonable prosecutor, exercising fair discretion, would not prosecute either of these cases. But if he prosecuted one, it would certainly be the more serious case, against Gonzales.

So why has Commander Diaz been court-martialed? Why indeed. In the immortal words of one of Dickens’s darkest and most reprehensible figures, from the Tale of Two Cities:

“Repression is the only lasting philosophy. The dark deference of fear and slavery, my friend,” observed the Marquis, “will keep the dogs obedient to the whip, as long as this roof shuts out the sky.”

What was so vitally important about that list? The list which ultimately was published when a federal court ordered it? The Pentagon here has been pursuing a grand design, and the author of that design is Alberto Gonzales.

Having authorized the use of torture on the prisoners at Guantánamo, Gonzales faced an acute dilemma – keeping the evidence of that torture off the record. Why? Because that evidence inculpates him and his colleagues, the torture-enablers. Every transcript of every legal proceeding is likely in the future to come back and haunt him. To be appended as another exhibit in the prosecution of Alberto Gonzales. Gonzales’s major concern from the beginning has been the presence of the habeas lawyers and their ability to get evidence before courts. He has been determined absolutely to shut them out. Which explains his policy of non-compliance with the Supreme Court’s rulings in Rasul and Hamdan, and the treatment meted out to Matthew Diaz, Charlie Swift and Michael Mori, among others.

After his trial, Diaz was apologetic.

“I just want the members to know I’m sincerely sorry for what I did — a stupid act,” Diaz said. “I’m better than that. The prosecutors were right: I’m a meticulous man. I should have done better. It was extremely irrational for me to do what I did.”

No doubt Diaz is sincere in these statements. And no doubt Diaz is honest in his statements about what motivated him.

Matthew Diaz is no great hero, perhaps. What he did was foolish, perhaps. Yet there is nothing dishonorable in what Matthew Diaz did. He showed that he cared about the Rule of Law, the Geneva Conventions and the rulings of the Supreme Court, even as those in authority above him derided the Constitution and the law as a nuisance, as “obsolete.” He showed a basic fidelity to his professional calling and oath.

Alberto Gonzales is not the embodiment of ultimate evil. History will know him as a pathetic figure. But strain as we may, will we find even one iota of honor about Alberto Gonzales? His every deed has shown a betrayal of the values that lawyers are sworn to uphold. He has put partisan loyalties above all else, and in so doing he has done severe – perhaps irreparable – damage to some of the most important institutions of our Republic.

What does it say about America today – that Matthew Diaz is headed for the brig, while Alberto Gonzales continues to enjoy the enormous perks and privileges associated with one of the highest offices in the land? Does it not reflect a perversion of our most basic values? What at long last has George W. Bush made of our country? These are the questions that every American should ask as he reads of the case of Matthew Diaz.

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