Months after our nation was confronted with the photos from Abu Ghraib, we now hear almost daily reports of continuing torture and abuse in U.S. detention facilities around the...
Months after our nation was confronted with the photos from Abu Ghraib, we now hear almost daily reports of continuing torture and abuse in U.S. detention facilities around the world. One of the men principally responsible for this problem is Alberto Gonzales, chosen by President Bush to lead the Department of Justice, and scheduled to appear before the Senate Judiciary Committee early next year.
The nomination hearings are not necessary, however: America knows enough to reject an attorney general who carries, and will likely perpetuate, the shameful legacy of Abu Ghraib.
Gonzales bears direct responsibility for the cruelties inflicted at Abu Ghraib, Guantánamo and elsewhere, because as White House counsel since 2001, he helped develop the revolutionary doctrine that the president and his subordinates are unbound by any laws, international or domestic, that prohibit torture or inhuman treatment of captives seized in the war on terrorism.
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Gonzales laid the cornerstone of this doctrine with a secret policy-setting memo (Jan. 25, 2002), adopted by the president a few days later. The memo advocated a declaration that al-Qaida and Taliban captives were not protected by the Geneva Conventions; the purpose of such a declaration, Gonzales explained, was to shield U.S. officials from possible prosecution under the Federal War Crimes Act for inflicting inhuman treatment during interrogations. Under the new policy, the Pentagon and CIA felt free to adopt a range of interrogation methods that soon degenerated into torture.
With the Geneva Conventions out of the way, Gonzales then asked the Office of Legal Counsel to analyze the government’s obligations under the Federal Torture Act.
The OLC responded with an infamous 50-page memo (Aug. 1, 2002) purporting to show that the president and his subordinates had legal permission to use torture. The memo defined torture so narrowly as to include only treatment equivalent in intensity to the pain accompanying crippling injury, organ failure, or death; it proposed that U.S. torturers could invoke concepts of self-defense and necessity as a defense against criminal prosecution; and it maintained that the president has constitutional authority to order any kind of torture he deems necessary in times of war.
Moreover, the memo itemized specific techniques that it argued would not constitute torture under its interpretation of the Federal Torture Act. These include mind-altering drugs, wall-standing, hooding, subjection to noise, sleep deprivation, deprivation of food and drink, shaking, the “frog-crouch” and the “Shabach” (a combination of techniques including prolonged stress positions and loud noise).
During World War II, Allied prisoners of war had no difficulty calling these techniques torture when they occurred in German concentration camps, Japanese POW camps, or even Stalin’s gulags. Our fathers knew these were tortures when they saw them in North Korea and Vietnam, and our forefathers had no difficulty denouncing them as torture when the British used them in colonial wars.
There is no evidence that Gonzales objected to the OLC memo. On the contrary, its most extreme arguments were quoted verbatim in subsequent memos that traveled up and down the ranks of the administration.
The attorney general is supposed to protect rights guaranteed by the Constitution, federal statutes and international treaties, but Gonzales exhibited an activist lawyer’s commitment to sweep away any law that gets in the way of executive power. He joined others in clearing a path for torture.
The Geneva Conventions and the Federal War Crimes Act? Issue a finding that Taliban, al-Qaida, and other suspected terrorists are not protected by the conventions. The Federal Torture Act? Determine that the act permits all but the most gothically excessive torments, and that the president can waive the act anyway. The Torture Convention and the Rome Statute of the International Criminal Court? Construct arguments for evading their strictures against torture as well. The well-entrenched prohibition of torture under customary international law? Declare that customary international law is not binding on the president. Meanwhile, insist on denying potential torture victims any access to the courts.
Because of Gonzales’ actions, hundreds and possibly thousands of people have been tortured, and many are still being tortured. They have been tortured at Guantánamo, Abu Ghraib, Bagram and other U.S. military prisons. They have been sent to countries like Jordan, Egypt, Syria and Morocco to experience whatever tortures have been perfected to a high art by local regimes. Many if not most of these victims lack any connection to terrorism.
America does not need an attorney general who facilitated the commission of war crimes. Gonzales has shown great deference to his chief executive, but has not demonstrated a democratic commitment to human rights and the rule of law. If his nomination is not withdrawn, every senator, Democrat and Republican, should vote against him.
Jamie Mayerfeld is associate professor of political science at the University of Washington and a specialist in the theory and practice of human rights. Darius Rejali is professor of political science at Reed College in Portland and author of “Torture and Democracy” (Princeton University Press, forthcoming).