news-gonzales

January 5, 2005

Bush Nominee Faces Scrutiny over Legal Opinions on Terrorism

By Anthony Dworkin

Alberto Gonzales, the White House Counsel whom President Bush has nominated to be the next U.S. attorney general, is set to face intense questioning on Thursday January 6 by the Senate Judiciary Committee about his role in devising the legal framework of the American military campaign against al-Qaeda. Gonzales’ nomination has provoked an unprecedented intervention by several former high-ranking military officers, who wrote in a letter to the Judiciary Committee that they felt “deep concern” about the nomination, based on the apparent disregard for American military traditions and doctrine in the analysis that Gonzales prepared or oversaw.

The concerns raised about Gonzales relate primarily to his role in the formulation of the Bush administration’s position on two key aspects of the “war on terror”: the decision not to apply the Geneva Conventions to the conflict between the United States and al-Qaeda, and a memorandum from the Justice Department’s Office of Legal Counsel that set out a highly permissive interpretation of the laws relating to torture or coercive interrogation by government agents.

At the beginning of 2002, the Bush administration was in the midst of a fierce dispute about the legal framework that should govern suspected terrorists seized during the war in Afghanistan – the first of whom had already been sent for detention and interrogation at the Guantanamo Bay naval base. On January 25, Gonzales sent a memorandum to the President arguing in favour of a determination that the Geneva Conventions of 1949 – the cornerstone of the law of international armed conflict – were not applicable to U.S. military operations against al-Qaeda or Taliban fighters. Gonzales argued that the advantages of a decision not to apply the Geneva Conventions were that it “preserves flexibility” and “substantially reduces the threat of domestic criminal prosecution” for actions taken by U.S. troops or other agents.

Elaborating these positions, Gonzales wrote that the war against terrorism was a new kind of war that placed a premium on “the ability to quickly obtain information from captured terrorists…and the need to try terrorists for war crimes such as wantonly killing civilians.” He added that in his judgement, “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.”

Gonzales also argued that it would be advantageous to reduce the likelihood of U.S. forces being prosecuted “by prosecutors and independent counsels who may in the future decide to pursue unwarranted charges” under the War Crimes Act (the domestic statute that criminalizes violations of the Geneva Conventions). Gonzales wrote that some phrases in the Geneva Conventions were not clearly defined, including “outrages upon personal dignity” and “inhuman treatment,” and he added that “it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.”

In the event, President Bush announced on February 7, 2002, that the Geneva Conventions would apply to the conflict against the Taliban (though Taliban fighters would not be awarded prisoner of war status) but not to the conflict against al-Qaeda.

The second point on which Gonzales faces questions relates to a memorandum he commissioned from the Justice Department at the urging of the Central Intelligence Agency. The memo, dated August 1, 2002, has become widely known as the “torture memo” because it offers a very permissive account of the kinds of coercive interrogation that should not be considered torture (it says that the infliction of physical pain only constitutes torture when the pain is of a level “that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure or serious impairment of bodily functions”). It also suggests that the President has the authority to override U.S. laws banning torture if he deems it essential for the conduct of the war against terrorism – asserting that the laws “must be construed as not applying to interrogations undertaken pursuant to [the President’s] Commander-in-Chief authority.”

Press reports have suggested that Gonzales not only commissioned the memo but received regular reports on its contents while it was being drafted. The primary author of the memo is thought to have been John Yoo, then-Deputy Assistant Attorney General, though the final version was signed by Jay Bybee, then-Assistant Attorney General.

The torture memo was leaked to the press last summer following the revelations about prisoner abuse at Abu Ghraib in Iraq and at other U.S. detention centres. In the face of widespread public outcry, the administration disavowed some of the assertions in the memo; Gonzales said in a press conference that “unnecessary, over-broad discussions in some of these memos that address abstract legal theories, or discussions subject to misinterpretation, but not relied upon by decision-makers are under review.”

Last week, with Gonzales’ appearance before the Senate Judiciary Committee imminent, the Justice Department issued a replacement memorandum. The new memo announced that it would not consider whether the President had the authority to order torture since “consideration of the bounds of any such authority would be inconsistent with the President’s unequivocal directive that United States personnel do not engage in torture.” It also stated that actions that caused “severe physical suffering” even if they did not involve pain on the level discussed by the earlier memo would still count as torture if the suffering was of sufficient intensity and duration.

Gonzales’ role in the development of the administration’s position on the Geneva Conventions and torture places him at the heart of the most controversial aspects of the war on terror. Many people believe that these two findings together created the preconditions for the widespread abuse of detainees in Afghanistan, Iraq and elsewhere that has since taken place. Gonzales – who had little background in military or national security law – may have been endorsing positions that were originally developed by others within the administration rather than him. But he oversaw and summarized the legal side of the process of policy development for the President, and he did so in a way that promoted an extraordinarily expansive view of executive power at the expense of international law as the U.S. government and military has traditionally understood it.

One particularly striking feature of the process through which the legal framework of the war on terror was developed is the way that lawyers from the military and the State Department – the groups with the most detailed knowledge and experience of the relevant branches of the law – were effectively cut out of the loop. Some members of the military legal community have been extremely unhappy about the legal positions underpinning the war on terrorism. It is now well known that in the spring of 2003 a group of serving and former military lawyers met secretly with Scott Horton of the Association of the Bar of the City of New York to encourage him to express their concern about the administration’s detention policies.

Now a group of former high-ranking military officers, including General John Shalikashvili, the former Chairman of the Joint Chiefs of Staff, and Rear Admiral John Hutson, former Judge Advocate General of the Navy, have gone public with their concerns. In their letter to the Senate Judiciary Committee, the officers write that U.S. detention and interrogation operations “have fostered greater animosity to the United States, undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world.” The officers assert that they “have learned first hand the value of adhering to the Geneva Conventions and practicing what we preach on the international stage.” They say that before Gonzales becomes Attorney General “it is critical to understand whether he intends to adhere to the positions he adopted as White House Counsel, or chart a revised course more consistent with fulfilling our nation’s complex security interests, and maintaining a military that operates within the rule of law.”

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Torture

General John Shalikashvili (Ret. USA) et al. (.pdf file)

Memorandum for the President

From: Alberto R. Gonzales

Subject: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al-Qaeda and the Taliban

January 25, 2002 (via Newsweek) (.pdf file)

Memorandum for Alberto R. Gonzales, Counsel to the President

U.S. Department of Justice, Office of Legal Counsel

August 1, 2002 (.pdf file)

United States Senate, Committee on the Judiciary