February 2005

Views expressed are those of the authors, not necessarily of the AFSC.

Attorney General Gonzales: Justifying Torture

Human Rights First, formerly known as the Lawyers' Committee for Human Rights, prepared this analysis, abridged here, of Alberto Gonzalez's record and his testimony before the Senate Judiciary Committee on January 6, 2005. For the complete analysis, please see www.humanrightsfirst.org. [Editors' note: In an exception to Peacework practice, we have not corrected gender-specific language in quotations from the legal memo discussed in this article. We note, however, that "defendants" in cases of alleged torture may be either male or female and that there is no excuse for continued linguistic obfuscation of this fact.]

After the horrific images from Abu Ghraib became public last year, Secretary of Defense Donald Rumsfeld insisted that the world should "[j]udge us by our actions," and "watch how a democracy deals with the wrongdoing and with scandal and the pain of acknowledging and correcting our own mistakes." The world is indeed watching. And the picture it will see should the Senate approve the nomination of Mr. Gonzales is the promotion of one closely associated with the torture and cruelty the President says he rejects.

The Torture Memos

In 2002, Mr. Gonzales asked the Office of Legal Counsel to prepare legal opinions on interrogation standards under the Convention against Torture as implemented by federal statute and binding international law obligations. The memo addressed to Gonzales (the "Bybee memo") served as the direct legal underpinning for harsh interrogation tactics employed on individuals detained by the United States in Afghanistan, in Iraq, and at Guantanamo Bay.

The Bybee memo reads largely like a roadmap to circumventing laws against torture. Yet it appears that no one involved in these deliberations, including Gonzales, had any misgivings about this legal opinion for nearly two years until it was publicly disclosed. The Bybee memo includes the following conclusions:

• "[F]or an act to constitute torture, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
• "For purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years."
• "[E]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.
• "[U]nder the current circumstances, necessity or self-defense may justify interrogation methods that might violate Sections 2340A."

In response to the widespread criticism of the Bybee memo, the Department of Justice issued a new memo on December 30, 2004, stating that it superseded the Bybee memo in its entirety, in which the analysis directly addressing the definition of torture was ameliorated. The memo did not, however, address the OLC's earlier conclusions that necessity or self-defense might justify torture.

At the hearing, Senator Leahy asked Mr. Gonzales whether he agreed with the Bybee memo's conclusion 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." Gonzales answered: "I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the department." Mr. Gonzales refused to disclose any documents related to that memo.

Senator Durbin asked Mr. Gonzales whether it was legally permissible for US personnel to engage in "cruel, inhuman or degrading treatment," stripping the prohibition on torture of much meaning as applied to non-citizens detained outside of the United States. Gonzales noted that the United States defines "cruel, inhuman or degrading treatment" as conduct prohibited by the Fifth, Eighth, and/or Fourteenth Amendments. Based on this reservation, Gonzales explained that the United States was "as a legal matter…in compliance" with the prohibition because "aliens interrogated by the US outside the United States enjoy no substantive rights under the Fifth, Eighth and Fourteenth Amendments." In a written response to Senator Feinstein for further clarification on this issue, Gonzales stated "that under Article 16 there is no legal obligation under the Convention Against Torture on cruel, inhuman, or degrading treatment with respect to aliens overseas." That analysis flies in the face of the treaty's ratification history and would remove serious human rights violations from legal prohibition.

Despite the prodding of Senators from both sides of the aisle, Mr. Gonzales would not opine whether the now infamous conduct at Abu Ghraib was criminal, explaining he did not want to prejudge and jeopardize any prosecutions.

The Geneva Conventions

At the hearing Mr. Gonzales refused to alter his stance that the Geneva Conventions did not apply to the conflict with Al Qaeda, repeatedly arguing that to apply the Conventions would mean that the protections of POW status must follow. That view is incorrect. Under the Geneva Conventions, an individual must receive a hearing to determine his or her status, after which the individual may be detained and, depending on his or her status, interrogated.

Mr. Gonzales repeatedly gave the impression that he believed that those not deemed prisoners of war are beyond the protections of the Geneva Conventions. That view is also incorrect. As the International Committee of the Red Cross has pointed out, Article 4 of the Fourth Geneva Convention provides protected status to those "who find themselves…in the hands of a party to the conflict," unless they do not meet nationality criteria or are covered by the other Geneva Conventions. Such detainees "have a label in the law of war conventions" -- "civilian," or "protected person" under the Fourth Convention -- even if they are suspected security threats or "unlawful combatants." Those individuals who fail to meet the nationality criteria are covered by Article 75 of Additional Protocol I to the Geneva Conventions, which is part of customary international law.

Mr.Gonzales refused to concede that his advice to deny the protections of the Geneva Conventions to Al Qaeda and the Taliban had any influence on detainee treatment in Iraq. Yet, as Senator Biden pointed out, the Pentagon-appointed Schlesinger Committee found that very determination was used by the commander of occupation forces in Iraq, Lt. Gen Ricardo S. Sanchez, to authorize interrogation techniques beyond established military practice and that the confusion over the varying interrogation policies led to some of the abuses in Iraq.

Presidential Power

The Bybee memo requested by Gonzales stated: "Even if an interrogation method arguably were to violate [the torture statute], the statute would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign." At the hearing Senators asked Mr. Gonzales on a number of occasions his view on this extreme legal position, which would fly in the face of settled separation of powers jurisprudence. In response:

• Mr. Gonzales stated that the President could invoke his authority as Commander-in-Chief to conclude that a law was unconstitutional and refuse to comply with it.
• When pressed in greater detail as to whether or not the President had the authority to order interrogations that violate criminal laws prohibiting torture, Mr. Gonzales continually responded that such questions were hypothetical because the President does not condone torture.
• Mr. Gonzales refused to provide a copy of, or reveal the legal conclusions of a March 13, 2002 memo on the President's authority to transfer captive terrorists to the control and custody of foreign nations.
  

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