Updates on the U.S. Torture Policy

A former attorney-advisor at the White House Office of Legal Council, Marty Lederman, has written up an excellent series of discussions of how the new torture memo differs from the old one and why either was written in the first place. Lederman concludes that all of the torture-condemning pronouncements from the White House, all of Alberto Gonzales’s assurances, and all of the recent anti-torture legislation from Congress have been carefully worded to specifically preserve the ability of agents from the Central Intelligence Agency to legally subject detainees to cruel, inhuman and degrading treatment.

Would it be too much to ask that Congress approve — and the President sign — a statute that would unambiguously prohibit all U.S. personnel, everywhere in the world, from engaging in cruel, inhuman, and degrading treatment — including, at a minimum, conduct that would shock the conscience, and thus violate the Due Process Clause, if it occurred within the U.S.?

At the Senate Judiciary Committee’s hearing on his nomination to be attorney general, Mr. Gonzales repeatedly was offered the chance to repudiate a legal judgment that the president is empowered to order torture in violation of U.S. law and immunize torturers from punishment. He declined to do so. He was invited to reject a ruling made under his direction that the infliction of pain short of serious physical injury, organ failure or death did not constitute torture. He answered: “I don’t have a disagreement with the conclusions then reached.” Nor did he condemn torture techniques, such as simulated drowning, that were discussed and approved during meetings in his office. “It is not my job,” he said, to decide if they were proper. He was prompted to reflect on whether departing from the Geneva Conventions had been a mistake, in light of the shocking human rights abuses that have since been reported in Iraq, Afghanistan and the Guantanamo Bay prison and that continue even now. Mr. Gonzales demurred. The error, he answered, was not of administration policy but of “a failure of training and oversight.”

The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world. Instead, the Bush administration will continue to issue public declarations such as those Mr. Gonzales repeated yesterday — “that torture and abuse will not be tolerated by this administration” — while in practice sanctioning procedures that the International Red Cross and many lawyers inside the government consider to be illegal and improper.

―Washington Post editorial

Much about the Senate grilling yesterday could be described as “quaint,” the infamous adjective choice of Alberto R. Gonzales, President Bush’s nominee for attorney general. In a plain, windowless chamber, the 12 men in a half-circle swivel in their fat leather chairs, refresh each other with refills of water, soak in a warm bath of mutual admiration.

They put Gonzales, who is looking up at them from a few feet away, at ease by calling him “Al.” One senator begins a criticism by saying, “I love you, but…” The senators compliment each other for being “fine lawyers,” even when the subject at hand is whether Gonzales approved a memo condoning “waterboarding,” an interrogation technique in which a detainee is strapped to a board and pushed underwater to make him think he might drown.

Occasionally his Democratic questioners engage in long, indignant tirades, even though Sen. Joseph R. Biden Jr. (D-Del.) announces early on that — despite any appearance of hostility — none of them actually plans to vote against Gonzales and they all know he will be confirmed.

―Hanna Rosin, in the Washington Post