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 US law in order to whitewash barbaric practices performed by US 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 US 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 US 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 US military or other personnel who engage in crimes of torture.
“It is difficult to predict the motives of [US] prosecutors and [US] 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 US 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 US 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 US 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 US 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.