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INTERNATIONAL LAW AND JUSTICE | Confirmation Hearings

SENATE EXPECTED TO CONFIRM GONZALES DESPITE TORTURE CONTROVERSY

Alberto Gonzales appeared before the Senate Judiciary Committee on January 6 in what many are considering only a perfunctory step towards becoming Attorney General. The committee's treatment of Gonzales's confirmation as inevitable is deeply disturbing in light of the central role he has played in drafting memos redefining and condoning torture.

In his opening statement, Gonzales stated: "Wherever we pursue justice. we must always be faithful to the rule of law." However, his actions during his tenure as White House Counsel call into question his willingness to defend the rule of law when his superiors seek to compromise it.

In summer 2004, the administration was widely criticized when several internal policy memos were leaked. The memos redefined torture and claimed that in the context of the war against terrorism the President could authorize the use of torture despite the constraints of domestic and international law. Alberto Gonzales requested and reviewed several of the documents central to the scandal and chaired meetings at which proposed interrogation techniques, including live burial and "waterboarding" - which induces the sensation of drowning - were described in detail.

According to the Washington Post, Gonzales "raised no objections, and, without consulting military and State Department experts in the laws of torture and war, approved an August 2002 memo." which blatantly disregarded domestic and international legal precedents to establish legal justification for such "aggressive" interrogation methods.

In a January 2002 draft memo to President Bush, Gonzales argued that the war on terrorism "renders obsolete [the Geneva Conventions'] strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." The final version of this memo was among the documents requested by members of the Judiciary Committee that were withheld by the administration.

In the August memo, the Department of Justice opined that U.S. law defined "severe" pain - the infliction of which would be prohibited by both domestic and international law under the Geneva Conventions, the Torture Convention, and the War Crimes Act - as that "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death." The infliction of any lesser pain, the memo argues, would be permissible. In addition, even the infliction of "severe" pain is permissible as long as the interrogators are seeking to extract information. In the context of the war on terrorism, the memo reasons, interrogators could claim to be torturing in self-defense.

Both the January and the August memo argue that the war on terrorism is a special circumstance in which torture becomes permissible. Such reasoning directly contradicts international law, including the Torture Convention, which states that: "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Critics charge that the administration's policies opened the door to the abuse of prisoners in U.S. detention facilities including at Iraq's Abu Ghraib prison. Throughout the hearing, Gonzales refused to acknowledge the widespread - and well-documented - occurrence of prisoner abuses, or to accept the possibility that a link existed between those abuses and the techniques advocated in the memos he approved.

Toward the end of the nearly day-long hearing, Gonzales acknowledged he made mistakes, but attributed the legal analysis regarding torture to the Department of Justice (DOJ). He said that the Justice Department was responsible for interpreting the law.

At times during the hearing, he attributed his deference to the Justice Department's legal expertise; at others, he suggested he deferred to avoid 'politicizing' the DOJ's decisions. In either case, Gonzales apparently did not contradict the analysis contained in the memos in the legal advice he gave to the President. Though claiming "I don't recall today whether or not I was in agreement with all of the analysis," he said he does not now agree with that interpretation.

Gonzales's failure to contradict those memos and derail an administration policy that potentially condoned or encouraged abusive tactics was at the heart of the criticism during the hearing. Many questioned whether this failure while serving as White House Counsel, the office that advises the President on all legal issues concerning the President and the White House, indicated Gonzales lacked the resolve to uphold the law.

Though Gonzales at times faced stiff questioning during the 7 hour hearing, most considered the hearing a mere formality in Gonzales's confirmation. "There's a lower standard, frankly, for attorney general than for judge, because you give the president who he wants," said one of the committee members.

To hold a nominee for the highest law enforcement position in the country to a "lower standard" because of Presidential preference is an abdication of the Senate's oversight responsibility, intended to ensure that individuals who assume high public positions are fit to occupy them.

For some, Gonzales's appearance at the hearings was less than persuasive. Sen. Joseph Biden, a Democrat from Delaware, accused Gonzales of hiding behind a "straw man" to avoid answering questions. At one point during an evasive response, a frustrated Biden responded "That's malarkey .. That's your judgment we're looking at. ... We're looking for candor."

Such candor seemed less than forthcoming in much of Gonzales's testimony. When asked directly whether "U.S. personnel [can] legally engage in torture under any circumstances," Gonzales answered, "I don't believe so, but I'd want to get back to you on that."

Updated January 12, 2005

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