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U.S. torture policy →
Alberto Gonzales
all I have is an update on the whole torture policy issue.
If you’re sick of hearing about it, move along.
The White House has finally started being significantly more direct and revealing about its views on the matter, and so there’s a lot that’s come out in the last couple of days that helps to clarify some of the things I’ve discussed here over the last few weeks.
’s release of documents related to the White House deliberations on the permitted extent of detention and interrogation methods is being criticized for being selective, which it does seem to be.
However it appears to me to be a significant and real backing-down from the “torture isn’t evil when we do it” position — significant in part because the Dubya Squad has had other opportunities recently to explicitly disavow torture and they instead put on a verbal dog-and-pony show to get around giving a straight answer.
Now, while occasionally the language gets slippery, the answers for the most part are much straighter.
Here are some quotes from White House Counsel Alberto Gonzales at a press briefing held yesterday:
[President Bush has] made it clear, in the war against al Qaeda and its supporters, the United States will follow its treaty obligations and U.S. law, both of which prohibit the use of torture.
And this has been firm U.S. policy since the outset of this administration and it remains our policy today.
I will reemphasize today that the President has not authorized, ordered or directed in any way any activity that would transgress the standards of the torture conventions or the torture statute, or other applicable laws.
The President has given no order or directive that would immunize from prosecution anyone engaged in conduct that constitutes torture.
All interrogation techniques actually authorized have been carefully vetted, are lawful, and do not constitute torture.
[T]his briefing does not include CIA activities.
I will say that all interrogation techniques authorized for use by the Agency against the Taliban and al Qaeda and in Iraq are lawful and do not constitute torture.
But to disclose anything more would be irresponsible during this period of ongoing conflict.
I want to reaffirm yet again that the United States has very high values.
We do not engage in torture.
We are bound by the convention against torture, as ratified by the United States.
Whatever broad language might be included in this legal memo, the United States government has never authorized torture in reliance on the argument that the convention against torture, or the torture statute are somehow inapplicable to the current conflict.
To the contrary.
All interrogation techniques authorized for use against the Taliban and al Qaeda and in Iraq have been carefully vetted and determined to not constitute torture under the definition provided by Congress and the convention against torture, as ratified by the United States.
Now it’s still possible that Gonzales is just lying — it’s not like it would be unheard of for someone from the Dubya Squad to just toss out a stream of fibs — but these tightly-worded denials are certainly a step up from the weaselly non-denials we’ve heard up ’til now, even if you can’t necessarily take them at face value.
Under questioning, Gonzales backed down a bit from the last statement I quoted: that the White House is using the definition of torture “provided by Congress and the convention against torture” — responding to a question by saying instead that “[t]he definition of torture that the administration uses is the definition that Congress has given us in the torture statute and the reservation of the torture convention” (emphasis mine).
This should raise some eyebrows, because the legal memos used this same set of Congressional language to conclude that torture had to be extremely severe (“equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death”) and done with a primary intent to torture in order to earn the name “torture.”
Gonzales went on to summarize this definition as: “a specific intent to inflict severe physical or mental harm or suffering.
That’s the definition that Congress has given us and that’s the definition that we use.”
He dodged a follow-up question on this, referring to another briefing that the Justice Department would give (but that I can’t find a transcript for).
So although this press briefing represents progress towards a “zero tolerance” policy towards torture, it still seems to leave the door open for things that most of us would consider to be torture (particularly if we were on the receiving end) but that don’t meet this narrower definition.
Pointedly not disavowed was the legal opinion that the president could — by invoking what was being called “the Commander-in-Chief override power” — approve torture, Congress and its definitions be damned.
In place of this, the speakers at the press briefing repeatedly said that the president has not in fact actually exercised this theoretical torture imprimatur.
Of course now we know that all of this was fundamentally dishonest and that the White House was in fact authorizing the torture of its prisoners.
Ashcroft’s gone [wait for cheers to die down] and the White House is floating Alberto Gonzales to replace him as Attorney General.
That’s Alberto “obsolete & quaint” Gonzalez, by the way:
“As you have said, the war against terrorism is a new kind of war,” Gonzales wrote to Bush… “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”
Gonzales also argued that dropping Geneva would allow the president to “preserve his flexibility” in the war on terror.
His reasoning?
That U.S. officials might otherwise be subject to war-crimes prosecutions under the Geneva Conventions.
Gonzales said he feared “prosecutors and independent counsels who may in the future decide to pursue unwarranted charges” based on a U.S. law that bars “war crimes,” which were defined to include “any grave breach” of the Geneva Conventions.…
The Senate Judiciary Committee will be considering this nomination.
If any of the Democrats on this committee want to demonstrate that their party has “values,” this would be a good occasion.
What did Gonzales think of all those torture memos that passed his desk?
What is his opinion of the miraculous “Commander-in-Chief Override” that apparently allows the president to ignore laws and treaties while he’s wearing his war hat?
The answers to these questions and many more may be yours… if The Donkey Grows a Pair.
Will the Senate do more than toss a few grandstanding rhetorical questions at Attorney General nominee Alberto Gonzales?
The Democrats, at least, are still showing little sign that they care much about the torture policy.
Dubya apparently is confident that they won’t make much of a fuss, since he’s also renominating another torture memo alumnus to the U.S. Court of Appeals:
The Drudge Report is trying to spin today’s news as if it deflects the blame for the Dubya Squad’s torture policy from Attorney General nominee Alberto Gonzales.
“Paper: Gonzales drafts ghost-written by Cheney lawyer,” says Drudge.
Nice try, but the news actually ties Gonzales closer to the torture memos than before:
[The CIA] asked for a legal review — the first ever by the government — of how much pain and suffering a U.S. intelligence officer could inflict on a prisoner without violating a law that imposes severe penalties, including life imprisonment and execution, on convicted torturers.
The Justice Department’s Office of Legal Counsel took up the task, and at least twice during the drafting, top administration officials were briefed on the results.
White House counsel Alberto R. Gonzales chaired the meetings on this issue, which included detailed descriptions of interrogation techniques such as “waterboarding,” a tactic intended to make detainees feel as if they are drowning.
He raised no objections and, without consulting military and State Department experts in the laws of torture and war, approved an memo that gave CIA interrogators the legal blessings they sought.
…it goes on…
Gonzales approved in — after limited consultation — an Office of Legal Counsel memo suggesting various stratagems that officials could use to defend themselves against criminal prosecution for torture.
Drafted at the request of the CIA, which sought legal blessing for aggressive interrogation methods for Abu Zubaida and other al Qaeda detainees, the memo contended that only physically punishing acts “of an extreme nature” would be prosecutable.
It also said that those committing torture with express presidential authority or without the intent to commit harm were probably immune from prosecution.
The memo was signed by Jay S. Bybee, then an assistant attorney general and now a federal appellate judge, but written with significant input from [John] Yoo, whom Gonzales had tried to hire at the White House and later endorsed to head Justice’s legal counsel office.
During the drafting of the memo, Yoo briefed Gonzales several times on its contents.
He also briefed Ashcroft, Bellinger, Addington, Haynes and the CIA’s acting general counsel, John A. Rizzo, several officials said.
At least one of the meetings during this period included a detailed description of the interrogation methods the CIA wanted to use, such as open-handed slapping, the threat of live burial and “waterboarding” — a procedure that involves strapping a detainee to a board, raising the feet above the head, wrapping the face and nose in a wet towel, and dripping water onto the head.
Tested repeatedly on U.S. military personnel as part of interrogation resistance training, the technique proved to produce an unbearable sensation of drowning.
State Department officials and military lawyers were intentionally excluded from these deliberations, officials said.
Gonzales and his staff had no reservations about the legal draft or the proposed interrogation methods and did not suggest major changes during the editing of Yoo’s memo, two officials involved in the deliberations said.
The memo defined torture in extreme terms, said the president had inherent powers to allow it and gave the CIA permission to do what it wished.
, its conclusions were cited approvingly in a Defense Department memo that spelled out the Pentagon’s policy for “exceptional interrogations” of detainees at Guantanamo Bay, Cuba.
Goes to show that there’s a big difference between:
“Sir, our investigators have found that we’ve been torturing detainees at Gitmo and have left them naked and shivering in their own feces for 24 hours at a time.”
“Sir, the ACLU is about to leak to the press that we’ve been torturing detainees at Gitmo and have left them naked and shivering in their own feces for 24 hours at a time.”
I’d become a little cynical about the ACLU — they seemed to spend a lot more effort on fundraising and identity politics than on protecting civil liberties.
But they’ve redeemed themselves and then some, and now I feel ashamed for doubting them.
They’re rising to today’s challenges admirably, at a time when so many other institutions are letting us down.
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 honour.”
Mr. Gonzales’ refusal to answer Senators’ questions did not affect the committee’s inquiry, which consists primarily of speeches to a gathering of journalists.
But seriously, folks… today’s Picket Line collects some of what this confirmation hearing has brought out.
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.?
, I reported on a press conference in which Alberto Gonzales delivered the first attempt by the Dubya Squad to back away from its torture memos.
I wrote, in part:
Gonzales backed down a bit from [his statement] that the White House is using the definition of torture “provided by Congress and the convention against torture” — responding to a question by saying instead that “[t]he definition of torture that the administration uses is the definition that Congress has given us in the torture statute and the reservation of the torture convention” (emphasis mine).
This should raise some eyebrows, because the legal memos used this same set of Congressional language to conclude that torture had to be extremely severe (“equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death”) and done with a primary intent to torture in order to earn the name “torture.”
Gonzales went on to summarize this definition as: “a specific intent to inflict severe physical or mental harm or suffering.
That’s the definition that Congress has given us and that’s the definition that we use.”
He dodged a follow-up question on this, referring to another briefing that the Justice Department would give (but that I can’t find a transcript for).
I’d hoped that I would be able to locate a transcript of this briefing so that I could post a follow-up here, but I haven’t. Now I know why:
