Is there bipartisan congressional support for torture?
That is the central question the Senate Judiciary Committee faces Thursday
as it begins hearings on the confirmation of White House Counsel Alberto
Gonzales as the next attorney general of the United States. At stake is
whether Congress wants to conveniently absolve Gonzales of his clear
attempt to have the president subvert U.S. law in order to whitewash
barbaric practices performed by U.S. interrogators in the name of national
Gonzales ignored the objections of State Department and military lawyers to
strongly endorse the determination of Justice Department lawyers that
neither the Geneva Convention nor corresponding U.S. laws on prisoner
protections should be applied in the "war on terror."
"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 wrote in a legal memo to President Bush on Jan.
25, 2002. Declaring the war-on-terror prisoners exempt from the Geneva
Convention, he argued, "substantially reduces the threat of domestic
criminal prosecution under the War Crimes Act."
Acting like a sleazy attorney advising a client on how not to be convicted
of an ongoing crime, Gonzales was apparently not worried about irrational
foreign courts or high-minded jurists in The Hague, but rather U.S.
prosecutors who might enforce federal laws that ban torture of foreign
prisoners of war. Indeed, Gonzales made the case for a legal end run around
the 1996 War Crimes Act, which mandates criminal penalties, including the
death sentence, for any U.S. military or other personnel who engage in
crimes of torture.
"It is difficult to predict the motives of [U.S.] prosecutors and [U.S.]
independent counsels who may in the future decide to pursue unwarranted
charges based on Section 2441" of the act, Gonzales wrote. "Your
determination [that Geneva protections are not applicable] would create a
reasonable basis in law that Section 2441 does not apply, which would
provide a solid defense to any future prosecution."
In light of what we have learned since about the rationalization and use of
torture by U.S. interrogators over the last three years, it is difficult to
ignore the possibility that Gonzales already had knowledge that such
violations had occurred and expected more.
In fact, Gonzales in his memo singles out language from the Geneva
Convention (and incorporated into U.S. law) that explicitly brands as a war
crime "outrages against personal dignity" -- a perfect description of the
pattern of mental, sexual and physical degradation of U.S. detainees that
has been reported by prisoners, military whistle-blowers and even FBI
agents in recent months. Many of those rounded up in Muslim countries by
U.S. military and intelligence personnel have reportedly been subjected to
dog attacks, being chained in fetal positions in their own excrement or
placed in degrading sexual postures..