Editorial / The Washington Post – 2005-01-20 23:44:02
The Vote on Mr. Gonzales
Editorial / The Washington Post
(January 16, 2005) — Despite a poor performance at his confirmation hearing, Alberto R. Gonzales appears almost certain to be confirmed by the Senate as attorney general. Senators of both parties declared themselves dissatisfied with Mr. Gonzales’s lack of responsiveness to questions about his judgments as White House counsel on the detention of foreign prisoners.
Some expressed dismay at his reluctance to state that it is illegal for American personnel to use torture, or for the president to order it.
A number of senators clearly believe, as we do, that Mr. Gonzales bears partial responsibility for decisions that have led to shocking, systematic and ongoing violations of human rights by the United States. Most apparently intend to vote for him anyway. At a time when nominees for the Cabinet can be disqualified because of their failure to pay taxes on a nanny’s salary, this reluctance to hold Mr. Gonzales accountable is shameful. He does not deserve to be confirmed as attorney general.
We make this judgment bearing in mind the president’s prerogative to choose his own cabinet, a privilege to which we deferred four years ago when President Bush nominated John D. Ashcroft to lead the Justice Department. In some important respects, Mr. Gonzales is a more attractive figure than Mr. Ashcroft. His personal story as a Hispanic American is inspiring, and he appears less ideological and confrontational than the outgoing attorney general. Mr. Gonzales is also not the only official implicated in the torture and abuse of detainees.
Other senior officials played a larger role in formulating and implementing the policies, and Mr. Bush is ultimately responsible for them. It is nevertheless indisputable that Mr. Gonzales oversaw and approved a decision to disregard the Geneva Conventions for detainees from Afghanistan; that he endorsed interrogation methods that military and FBI professionals regarded as illegal and improper; and that he supported the indefinite detention of both foreigners and Americans without due process. To confirm such an official as attorney general is to ratify decisions that are at odds with fundamental American values.
Mr. Gonzales’s defenders argue that his position on the Geneva Conventions amounted to a judgment that captured members of al Qaeda did not deserve official status as prisoners of war. If that had been his recommendation, then the United States never would have suffered the enormous damage to its global prestige caused by the detention of foreigners at the Guantánamo Bay prison.
In fact, the White House counsel endorsed the view that the hundreds of combatants rounded up by US and allied forces in Afghanistan, who included members of the Taliban army, foreign volunteers and a few innocent bystanders, as well as al Qaeda militants, could be collectively and indiscriminately denied Geneva protections without the individual hearings that the treaty provides for.
That judgment, which has been ruled illegal by a federal court, resulted in hundreds of detainees being held for two years without any legal process. In addition to blackening the reputation of the United States, the policy opened the way to last year’s decision by the Supreme Court, which ruled that the prisoners were entitled to appeal their detentions in federal courts.
The court also ruled that an American citizen could not be detained and held as an “enemy combatant” without court review or the right to counsel, invalidating Mr. Gonzales’s position in the cases of Yaser Esam Hamdi and Jose Padilla.
Mr. Gonzales made a second bad judgment about the Geneva Conventions: that their restrictions on interrogations were “obsolete.” Quite apart from the question of POW status for detainees, this determination invalidated the Army’s doctrine for questioning enemy prisoners, which is based on the Geneva Conventions and had proved its worth over decades.
Mr. Gonzales ignored the many professional experts, ranging from the Army’s own legal corps to Secretary of State Colin L. Powell, who told him that existing interrogation practices were effective and that setting them aside would open the way to abuses and invite retaliation against Americans. Instead, during meetings in his office from which these professionals were excluded, he supported the use of such methods as “waterboarding,” which causes an excruciating sensation of drowning.
Though initially approved for use by the CIA against al Qaeda, illegal techniques such as these quickly were picked up by military interrogators at Guantánamo and later in Afghanistan and Iraq. Several official investigations have confirmed that in the absence of a clear doctrine – the standing one having been declared “obsolete” — US personnel across the world felt empowered to use methods that most lawyers, and almost all the democratic world, regard as torture.
Mr. Gonzales stated for the record at his hearing that he opposes torture. Yet he made no effort to separate himself from legal judgments that narrowed torture’s definition so much as to authorize such methods as waterboarding for use by the CIA abroad.
Despite the revision of a Justice Department memo on torture, he and the administration he represents continue to regard those practices as legal and continue to condone slightly milder abuse, such as prolonged sensory deprivation and the use of dogs, for Guantánamo.
As Mr. Gonzales confirmed at his hearing, US obligations under an anti-torture convention mean that the methods at Guantánamo must be allowable under the Fifth, Eighth and 14th amendments of the US Constitution.
According to the logic of the attorney general nominee, federal authorities could deprive American citizens of sleep, isolate them in cold cells while bombarding them with unpleasant noises and interrogate them 20 hours a day while the prisoners were naked and hooded, all without violating the Constitution. Senators who vote to ratify Mr. Gonzales’s nomination will bear the responsibility of ratifying such views as legitimate.
Gonzales Excludes CIA from Rules on Prisoners
Eric Lichtblau / The New York Times
WASHINGTON (January 20, 2005 ) — Officers of the Central Intelligence Agency and other nonmilitary personnel fall outside the bounds of a 2002 directive issued by President George W. Bush that pledged the humane treatment of prisoners in US custody, Alberto Gonzales, the White House counsel, said in a document.
In written responses to questions posed by senators as part of their consideration of his nomination to be attorney general, Gonzales also said a separate congressional ban on cruel, unusual and inhumane treatment had “a limited reach” and did not apply in all cases to “aliens overseas.”
That position has clear implications for prisoners held in US. custody at Guantánamo Bay, Cuba, and in Iraq, legal analysts said.
At the same time, however, the president has a clear policy opposing torture, and “the CIA and other nonmilitary personnel are fully bound” by it, Gonzales said.
The administration’s views on torture and the treatment of prisoners have been the focus of the confirmation process for Gonzales, and several senators had pressed him for a fuller explanation, unsatisfied with the answers he gave at his hearing before the Senate Judiciary Committee.
His written responses, totaling more than 200 pages on torture and other questions and made public Tuesday by the committee’s Democrats, offered one of the administration’s most expansive statements of its positions on a variety of issues, particularly regarding laws and policies governing CIA interrogation of terror suspects.
Gonzales’s acknowledgment that the White House did not consider the CIA bound by the same rules as military personnel is significant because the intelligence agency has used some of the government’s most aggressive and controversial tactics in the interrogating of detainees.
Martin Lederman, a former Justice Department lawyer who has analyzed the administration’s legal positions on treatment of prisoners, said the documents made it clear that the White House had carved an exemption for the CIA in how it goes about interrogating terror suspects, allowing the agency to engage in conduct outside the United States that would be unconstitutionally abusive within its borders.
Although the CIA has been largely bound by congressional bans on torture, Lederman said that standard was more permissive than the 2002 directive from Bush.
Last month, at the urging of the White House, congressional leaders scrapped a legislative measure that would have imposed new restrictions on the use of extreme interrogation measures by intelligence officers at the CIA and elsewhere. Gonzales said in the newly released answers that he had not been involved in the lobbying effort.
“But it’s notable,” Lederman added, “that Gonzales is not willing to tell the senators or anyone else just what techniques the CIA has actually been authorized to use.”
Indeed, Gonzales declined to say in his written responses to the committee what interrogation tactics would constitute torture in his view or which ones should be banned.
Some Democrats said they remained unsatisfied with Gonzales’s responses. “This was another missed opportunity for straight answers and accountability,” said Senator Patrick Leahy, Democrat of Vermont.
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