Is there bipartisan congressional support for torture?
That is the central question the Senate Judiciary Committee faces
Thursday as it begins hearings on the confirmation of White House
Counsel Alberto Gonzales as the next attorney general of the United
States. At stake is whether Congress wants to conveniently absolve
Gonzales of his clear attempt to have the president subvert U.S. law in
order to whitewash barbaric practices performed by U.S. interrogators
in the name of national security.
Gonzales ignored the
objections of State Department and military lawyers to strongly endorse
the determination of Justice Department lawyers that neither the Geneva
Convention nor corresponding U.S. laws on prisoner protections should
be applied in the "war on terror."
"In my judgment, this new
paradigm renders obsolete Geneva's strict limitations on questioning of
enemy prisoners and renders quaint some of its provisions," Gonzales
wrote in a legal memo to President Bush on Jan. 25, 2002. Declaring the
war-on-terror prisoners exempt from the Geneva Convention, he argued,
"substantially reduces the threat of domestic criminal prosecution
under the War Crimes Act."
Acting like a sleazy
attorney advising a client on how not to be convicted of an ongoing
crime, Gonzales was apparently not worried about irrational foreign
courts or high-minded jurists in The Hague, but rather U.S. prosecutors
who might enforce federal laws that ban torture of foreign prisoners of
war. Indeed, Gonzales made the case for a legal end run around the 1996
War Crimes Act, which mandates criminal penalties, including the death
sentence, for any U.S. military or other personnel who engage in crimes
of torture.
"It is difficult to predict the motives of [U.S.]
prosecutors and [U.S.] independent counsels who may in the future
decide to pursue unwarranted charges based on Section 2441" of the act,
Gonzales wrote. "Your determination [that Geneva protections are not
applicable] would create a reasonable basis in law that Section 2441
does not apply, which would provide a solid defense to any future
prosecution."
In light of what we have learned since about
the rationalization and use of torture by U.S. interrogators over the
last three years, it is difficult to ignore the possibility that
Gonzales already had knowledge that such violations had occurred and
expected more.
In fact, Gonzales in his memo singles out
language from the Geneva Convention (and incorporated into U.S. law)
that explicitly brands as a war crime "outrages against personal
dignity" — a perfect description of the pattern of mental, sexual and
physical degradation of U.S. detainees that has been reported by
prisoners, military whistle-blowers and even FBI agents in recent
months. Many of those rounded up in Muslim countries by U.S. military
and intelligence personnel have reportedly been subjected to dog
attacks, being chained in fetal positions in their own excrement or
placed in degrading sexual postures.
On Monday, a group of
military legal experts, including Rear Adm. John Hutson, who was
recently the Navy's judge advocate general, released a letter to the
Judiciary Committee noting that Gonzales' recommendations "fostered
greater animosity toward the United States, undermined our intelligence
gathering efforts, and added to the risks facing our troops serving
around the world."
Gonzales based his case for doing away
with the Geneva protections on memos produced by a small group of
Justice Department lawyers that, along with making other controversial
claims, infamously argued that physical abuse of prisoners was torture
only if it was "of an intensity akin to … serious physical injury such
as death or organ failure," and mental abuse was torture only if it
caused "lasting psychological harm." Presumably these pain and damage
levels are to be determined by the interrogator.
Such
language was so onerous that, perhaps to help Gonzales get through the
hearings, the Justice Department only last week quietly slipped new
guidelines onto its website redressing this stain on the country's
reputation. Although still vague in many parts, the new doctrine
belatedly reasserts the primacy of international and federal law in the
treatment of prisoners, even those captured in relation to the war on
terror.
Another positive step would be the withdrawal or
rejection of the Gonzales nomination. To make a man with so little
respect for both the spirit and the letter of the law the nation's top
law enforcement official would be a terrible advertisement for American
democracy.
