Alberto Gonzales and the Rule of Lawlessness

by Jan 9, 2005Foreign Policy0 comments

As Senator Patrick Leahy noted in the Senate Judiciary Committee hearing on the nomination of Alberto Gonzalez to be U.S. Attorney General, Gonzales has been “chief defense lawyer for the White House on a number of very important and, many times, politically sensitive issues.”[1] Take, for example, Gonzales’ fight with Congress “to keep the details […]

As Senator Patrick Leahy noted in the Senate Judiciary Committee hearing on the nomination of Alberto Gonzalez to be U.S. Attorney General, Gonzales has been “chief defense lawyer for the White House on a number of very important and, many times, politically sensitive issues.”[1]

Take, for example, Gonzales’ fight with Congress “to keep the details of Vice President Dick Cheney’s energy commission meetings secret”.[2] The commission in question followed on the heels of a Council on Foreign Relations sponsored task force, which found that the “central dilemma” facing U.S. energy policy is that “the American people continue to demand plentiful and cheap energy without sacrifice or inconvenience.”

The task force named Iraq as a “key ‘swing’ producer” that poses “a difficult situation for the U.S. government” and concluded that “Iraq remains a destabilizing influence to U.S. allies in the Middle East, as well as to regional and global order, and to the flow of oil to international markets from the Middle East.” The group’s recommendation was that “The United States should conduct an immediate policy review toward Iraq, including military, energy, economic, and political/diplomatic assessments.”[3]

The apparent result of this recommendation was the Cheney energy task force that was commissioned in early 2001. After the public interest group Judicial Watch filed a lawsuit against the Department of Energy to turn over its files pertaining to the task force under the Freedom of Information Act, documents were turned over which included maps of Iraqi oilfields, pipelines, refineries and terminals, and information on foreign suitors for Iraqi oil field contracts.[4]

Fighting to deny the release of such records is not the only controversial decision made on the part of Bush’s nominee. He also “defended the administration’s right to detain terrorism suspects indefinitely without formal charges and to deny them access to counsel or to protection from the court system.”[5]

But perhaps even more controversial is Gonzales’ role, as legal counsel to George W. Bush, in the development of administration policies towards “unlawful combatants” – specifically, in the development of policies which sought to justify harsh interrogation methods. At the center of the debate is a memo written by Gonzales in which he outlines the legal opinion that “the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply to the conflict with al Qaeda.”[6]

Consistently ignored in the debate is the simple and obvious fact that the only pragmatic reason to opine that the Geneva Conventions do not apply to the present conflict would be to establish legal protection against prosecution for what would otherwise amount to violations of both domestic and international law.

Indeed, in the memo, Gonzales makes no effort to conceal this purpose, noting that denying Geneva protections to detainees in the “war on terrorism” “Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441)”, which essentially codifies the GPW into federal law and “prohibits the commission of a ‘war crime’ by or against a U.S. person, including U.S. officials.” Such a decision from Bush “would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.”

In other words, Gonzales was arguing that denying “prisoner of war” status and the protections afforded to detainees of such status would allow U.S. officials to commission what would otherwise be violations of international law, including violations the world community has defined as “war crimes”, without fear of domestic prosecution. This central purpose, stated in no uncertain terms, has, remarkably, been lost in the “debate” over the nomination of Gonzalez for the office of Attorney General.

As Senator John Cornyn pointed out in the hearing, one of the arguments favoring the opinion that the GPW does not apply to prisoners in the “war on terrorism” is that “Al Qaida never signed the Geneva Conventions”. Instructively, as a Congressional Research Service report on the lawfulness of interrogation techniques points out, “At Nuremberg, defendants argued that the treatment of Soviet prisoners was not unlawful because the Soviet Union had not ratified the Geneva Convention. For the most part, the international and national military tribunals did not accept this defense.”[7]

In his nomination hearing, Gonzales emphasized that he is “deeply committed to the rule of law”, adding that, “Contrary to reports, I consider the Geneva Conventions neither obsolete nor quaint.”

Perhaps worthy of note (though not if one were to judge by the response from the Senate committee), is the fact that such allegations do not rise from anonymous third-person “reports”, but from the words of Gonzales himself, who wrote that the “new paradigm” of the “war on terrorism” “renders obsolete Geneva’s strict limitations” on interrogation methods and “renders quaint some of its provisions”.

Predictably, this obvious contradiction was left to stand on the record at the hearing without further question or comment.

Gonzales’ assurances, however, that he is committed to the rule of law are probably sincere. As competent observers have pointed out, one of the primary purposes of the Gonzalez memo and others like it was to create a legal justification for harsh interrogation methods. It goes without saying that the creation of such a “justification”, in the minds of its creators, would be in compliance with their own version of “the rule of law”.

This simple truth helps to explain Gonzales’ assurances that he is “deeply committed to ensuring that the United States government complies with all of its legal obligations as it fights the war on terror”, including “honoring the Geneva Conventions whenever they apply.” Such caveats are necessary in order to reconcile such statements of commitment to “the rule of law” with support for policies condoning harsh interrogation methods.

Thus, when Gonzales was asked whether he approved of torture, he was able to respond, in all honesty, “Absolutely not”. There are two points that should be made with regard to this assurance. First, international law recognizes a distinction, surely not lost upon Gonzalez, between “torture” and “inhuman or degrading treatment”.

Not surprisingly, Gonzalez was never asked whether he approved of “inhuman or degrading treatment”, which, as the European Commission of Human Rights (ECHR) concluded in 1978, includes the use of “stress positions”, the placing of bags over detainees’ heads, and depriving detainees of sleep, among other methods employed by the U.S. in detention centers such as Guantanamo Bay, Cuba, and Abu Ghraib, Iraq.[8]

Moreover, such interrogation methods may, indeed, rise to the level of “torture”, if the report of the International Committee of the Red Cross (ICRC) on the treatment of detainees is any indication – a report which described “harsh treatments” used by U.S. interrogators “which in some cases was tantamount to torture.”[9]

Similarly, in a more recent ruling against Israeli interrogation tactics, the ECHR found that the same interrogations techniques were not merely “inhuman or degrading”, but constituted “torture”. The U.S. State Department seemed to agree, reporting in 2000 that Israeli security forces “abused, and in some cases, tortured Palestinians”.[10]

This brings us to the second point that must be understood with regard to Gonzales’ disapproval of “torture”, which is the definition of the word itself.

In his questioning, Senator Leahy momentarily addressed this matter by noting that in a memo addressed to Gonzalez and written at his request, “torture” had been narrowly defined. The memo, written by Assistant Attorney General Jay S. Bybee, concluded that “For an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

When asked if he still agreed with that interpretation, despite professing that that portion of the memo had been withdrawn, Gonzalez responded, “I don’t have a disagreement with the conclusions then reached by the department.” What this means, of course, is that Gonzales’ denunciation of “torture”, though perhaps honest, is not what it might appears to be on its face.

The role of Bush’s nominee for Attorney General in formulating policies which fostered the authorization of abusive interrogation methods is not, as some of Gonzales’ friends in the Senate hearing contended, insignificant. Indeed, critics of the nominee are right to question his role in the formulation of such policies.

But of no lesser importance, despite the tendency for the fact to be lost in the debate over the nomination, is that not only are the abuses which have been ongoing at facilities like Guantanamo Bay or Abu Ghraib contrary to “the rule of law”, but the war in Iraq itself is a heinous violation of the most fundamental principle governing relationships between nations, an act constituting “the supreme international crime”, according to the International Court at Nuremberg, “differing only from other war crimes in that it contains within itself the accumulate evil of the whole.”

If the assurances of the nominee for Attorney General that he is “deeply committed to the rule of law” are to be taken seriously, this simple fact must not be forgotten. In the final analysis, Bush’s nominee for the highest office of the Justice Department is simply another example of the administration’s commitment to the rule of lawlessness.


[1] “Text: Gonzalez Nomination Hearing”, FDCH E-Media, Inc. January 6, 2005

http://www.washingtonpost.com/wp-dyn/articles/A53883-2005Jan6.html

[2] “Profile: Attorney General Nominee Alberto Gonzales”, ABC News, January 8, 2005

http://abcnews.go.com/Politics/story?id=241596&page=1

[3] “Strategic Energy Policy Challenges for the 21st Century, April 2001

http://www.ratical.org/ratville/CAH/linkscopy/energytf.html

[4] “Cheney Energy Task Force Documents Feature Map of Iraqi Oilfields”, Judicial Watch, July 17, 2003

http://www.judicialwatch.org/071703.b_PR.shtml

[5] “Profile: Attorney General Nominee Alberto Gonzales”

[6] “Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict With al Qaeda and the Taliban”, Council to the President Alberto R. Gonzales draft memorandum to George W. Bush, January 25, 2002

http://www.yirmeyahureview.com/archive/documents/prisoner_abuse/gonzales_memo.pdf

[7] “Lawfulness of Interrogation Techniques under the Geneva Conventions”, Congressional Research Service, September 8, 2004

http://www.yirmeyahureview.com/archive/documents/prisoner_abuse/

crs_lawfulness_of_interrogation_techniques.pdf

[8] “U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques”, Congressional Research Service, June 16, 2004

http://www.yirmeyahureview.com/archive/documents/prisoner_abuse/

crs_un_convention_against_torture.pdf

[9] “International Committee of the Red Cross Report on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation”, February 2004

http://www.yirmeyahureview.com/archive/documents/prisoner_abuse/icrc_iraq.pdf

[10] “U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques”

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About Jeremy R. Hammond

About Jeremy R. Hammond

I am an independent journalist, political analyst, publisher and editor of Foreign Policy Journal, book author, and writing coach.

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