Mr. Gonzales, who faces criticism from
Democrat senators over a memo he wrote seeking to clarify whether the Geneva
Conventions apply to terror suspects, refused to answer further questions
from committee members at his confirmation hearing.
White House spokesman Trent Duffy said President Bush hopes Senators will,
at least, treat Mr. Gonzales according to
Article 14 of the Third Geneva Convention, which states: “Prisoners of war
are entitled in all circumstances to respect for their persons and their
Mr. Gonzales’ refusal to answer Senators’
questions did not affect the committee’s inquiry, which consists primarily
of speeches to a gathering of journalists.
As a leading architect of Bush’s ends-justifies-means war on terror, Gonzales
pushed to justify torturing terror suspects in violation of international
law, promoted military tribunals that echo Stalin’s show trials, helped write
the Patriot Act (which, among other powers, gives
government agents vast new snooping authority) and excused the limitless
imprisonment of American citizens whom the president merely suspects of
Three years into that war, much of Gonzales’ handiwork has been rejected by
courts, damned by the world community and disavowed by the administration — as in the Justice Department memo quietly released last week declaring that
“torture is abhorrent to both American law and values and to international
Gonzales’ record as White House counsel is not just a series of unfortunate
missteps; rather, it is a troubling window into the man’s morality and his
fitness to be the nation’s chief lawyer.
Just to get things started on the right foot, though,
Mr. Gonzales planned to go the extra mile and
offer the quaint, obsolete Senate Democrats a more nuanced explanation of why
he called the Geneva Conventions “quaint” and “obsolete.”
Before he helped President Bush circumvent the accords and reserve the right
to do so “in this or future conflicts,” you had to tune in to an old movie
with Nazi generals or Vietcong guards if you wanted to see someone sneeringly
shrug off the international treaty protecting prisoners from abuse. (“You
worthless running dog Chuck Norris! What do we care about your silly Geneva
The first sentence is the classic “he hit me first” gambit well-known to grade
school children everywhere. The second sentence is a flat-out lie, since we
now have plenty of evidence that when it comes to torture, the president has
been vigorous in his attempts to evade “our nation’s values and
applicable law,” and that Gonzales was happy to help. Prefixing a pledge
(sentence #3) with a lie isn’t the best way to make a pledge sound convincing.
…Digby, at Hullabalooresponds with an appeal to patriotism, values, and good old-fashioned spine:
But, you see, the mere act of finally drawing that line in the sand, of
saying “No More” is the very thing that refutes the charge. It’s hemming and
hawing and splitting the difference and “meeting halfway” and offering
compromises on matters of principle that makes the charge of Democratic
It’s not that I believe that all Americans are horrified, or even a majority
of Americans are horrified. Clearly, the dittoheads think it is just ducky.
But that isn’t the point. Just because they aren’t horrified or even endorse
it on some level doesn’t mean that they don’t know that it’s wrong.…
Every person alive in America today grew up with the belief that torture is
wrong. Popular culture, religion, folklore and every other form of cultural
instruction for decades in this country has taught that it is wrong, from
sermons and lectures to films about slavery to photographs of Auschwitz to
crime shows about serial killers. It is embedded in our consciousness. We
teach our children that it is wrong to torture animals and other kids. We
don’t say that there are exceptions for when the animals or kids are really,
really bad. We have laws on the books that outright outlaw it. The words
“cruel and unusual” are written into our constitution.…
The arguments for torture being raised by the right are
rationalizations for what they know is immoral and illegal conduct.
Their discomfort with the subject clearly indicates that they don’t really
want to defend it. (Witness the pathetic dance that even that S&M freak
Rush Limbaugh had to do after his comments were widely disseminated.)
Will they admit that they know it’s wrong? Of course not. But when they take
up their manly jihad and accuse the Democrats of being swooning schoolgirls
they will also be forced to positively defend something that many of
them know very well is indefensible. And every time they do that their
credibility on values and morals is chipped away a little bit.
I don’t expect them to change their tune. Way too much of this comes from a
defect in temperament and garden variety racism and that’s not going to go
away. But Democrats have to thicken their skins and be prepared for the usual
attacks and insist over and over again that it is against the values and
principles of the United States to torture people, period. It is not only
right, it is smart.
As I wrote below, the opposition will bluster and fidget and scream bloody
murder. But listen to the tenor of their arguments.
The WSJ articlebelow
rails against the “glib abuse of the word [torture]” as if they can run away
from the issue by engaging in a game of semantics. They are reduced to
claiming that unless we torture it will be unilateral disarmament. We, the
most powerful military force the world has ever known, will be defeated by a
bunch of third world religious misfits if we don’t engage in torturing
suspects. Just who sounds weak?
But, instead, it was a Republican Senator (and a war hawk to boot) who made
this point. From Senator Lindsey Graham’s opening comments:
I think we’ve dramatically undermined the war effort by getting on the
slippery slope in terms of playing cute with the law, because it’s come back
to bite us. Abu Ghraib has hurt us in many ways. I travel throughout the world
like the rest of the members of the Senate, and I can tell you it is a club
that our enemies use, and we need to take that club out of their hand.
Guantanamo Bay, the way it’s been run has hurt the war effort. So if we’re
going to win this war, Judge Gonzales, we need friends and we need to
recapture the moral high ground… And to those who think that the Geneva
Convention is a nicety or that taking torture off the table is naïve and a
sign of weakness… I think you weaken yourself as a nation when you try to play
cute and become more like your enemy instead of like who you want to be.
The Senators had the curious idea to call in somebody who knows a thing or
two about torture, Douglas A. Johnson, Executive Director of the
Center for Victims of Torture, who
The Bybee memorandum of
is particularly egregious and dangerous. The overall tone of the Bybee
memorandum restricts the definition of torture so narrowly that it could be
used to justify various forms of torture. One of the most problematic
conclusions of that memo was the notion that “These statutes suggest that
‘severe pain’ … would ordinarily be associated with a sufficiently serious
physical condition or injury such as death, organ failure, or serious
impairment of body functions — in order to constitute torture.“
When I first read this statement, I was reminded of our interactions with
Vietnamese reeducation camp survivors recently arrived as refugees to the
United States in . They had
been through horrific experiences that any reasonable person would understand
to be torture with regard to direct physical coercion, conditions of
malnutrition, and intentionally malevolent prison conditions. Their symptoms
were consistent with those of other survivors of torture we had seen from
Cuba, Central and South America, Africa and Eastern Europe, and from
Cambodia. Yet we discovered that the Vietnamese word for torture literally
meant “dying under torment.” As they survived and still lived, it stood to
reason that in their minds they were not “tortured.” They didn’t have the
concepts within their language to interpret and understand what had happened
to them. Bybee’s definition for torture appears to be “dying under torment.”
If we used this definition, the Center for Victims of Torture wouldn’t have
clients at all.
The second extraordinary claim was that torture occurs only when the intent
was to cause pain, rather than that pain was intentionally used to gain
information or confessions: “the infliction of such (severe) pain must be the
defendant’s precise objective.” In other words, only when a sadist carried
out techniques that lead to organ failure and death can we call it torture.
This is not only a wrong definition from a legal point of view, it is morally
wrong, and it is against American values. With a definition like this, we can
not retrieve the historic leadership role that the United States has played
in the global campaign against torture. We are thankful that the new Justice
Administration memorandum of
recognizes the errors of the earlier memorandum and corrects some of them.
We wish that it had not taken so long to do so. After the Bybee definition was
solicited, accepted, and circulated by Gonzales, hundreds of detainees under
U.S. control have
suffered from torture and inhumane and degrading treatment.…
By confusing the criminal code definition with a guide to policy,
Mr. Bybee twisted its content to become an
advisory on how to avoid criminal prosecution. The
of torture must be more inclusive than that needed to keep our interrogators
out of jail. It should be based on a clear view of the standards of human
dignity that we stand for in the world.
Memorandum of the Office
of the Legal Counsel of the Justice Department recognizes some of the errors
of the Bybee memorandum, in particular the definition of torture as pain
equivalent in intensity to pain accompanying serious physical injury such as
organ failure or death. It also clearly states that torture is abhorrent to
both the American law and values and to international norms. But the new memo
is problematic in other ways. It assiduously refuses to provide a broad view
of the appropriate standards for conduct of interrogations or detention. In
this sense, it does not escape the narrow focus on criminal prosecution that
I discussed above. It gives the impression that the Office of the Legal
Counsel is not concerned with conduct which qualifies as “cruel, inhuman or
degrading treatment or punishment.” The Torture Convention and
U.S. law prohibit
both torture and inhuman and degrading treatment. The memo just says that
torture is prohibited and then works with a narrow definition of torture. We
need top legal experts also to say what we stand for, not just what we are
against. What we stand for is clearly stated in Article 10 of the
Covenant on Civil and Political Rights, which we
have ratified without reservation: “All persons deprived of their liberty
shall be treated with humanity and with respect for the inherent dignity of
the human person.” The memo is also unclear about whether it applies to
Guantánamo, Afghanistan, or Iraq, at a time when we are in great need of
clarity on exactly those issues. Finally, the new memo evades the question of
whether the President has the authority to order that torture be inflicted.
It says it doesn’t have to deal with that issue because the President has
stated an unequivocal directive that
U.S. personnel not
engage in torture. But this leaves the impression that the President (or
Secretary of Defense) could change his mind and ignore the limits on torture.
But in light of continuing evidence that the President’s directive has not
been followed in the field, there is still a need for a stronger statement
that U.S. and
international law prohibit torture and inhuman and degrading treatment and
must be followed in all circumstances.
Would that it were so:
COBURN: And is it, to your knowledge, a policy of this administration
at any time to tolerate torture or inhumane behavior towards any of the
detainees that we have?
MR. GONZALES: It
is — it is not the policy of the administration to tolerate torture or
inhumane conduct toward any person that the United States is detaining.
Senators tried fruitlessly to pin Gonzales down on whether or not he believes
in the legendary “Commander-in-Chief override” with which a president can
ignore any law or treaty if he does so in the course of his Constitutional
war-making powers. The most Gonzales would say was that the part of the
memo that endorsed this doctrine had been
withdrawn and was no longer the explicit position of the Department of Justice.
The memo was specifically talking about
international anti-torture conventions that the United States had signed on
to, and the laws Congress had passed to enforce them. Arlen Specter came the
closest to getting Gonzales to back down by using the bluntest of quotes on
this from the memo. Gonzales did back down, and with uncharacteristic
SPECTER: Just one question about the so-called Bybee memorandum, and
it is, do you agree with the statement in the memo, quote, “The Congress may
no more regulate the president’s ability to detain and interrogate enemy
combatants than it may regulate his ability to direct troop movements on the
battlefield,” close quote?
MR. GONZALES: I
reject that statement, Senator.
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