The Road to Abu Ghraib: Paved with the Legal Opinion of Alberto Gonzales – PDF

2004 The Road to Abu Ghraib: Paved with the Legal Opinion of Alberto Gonzalez

In a country governed by law, his legal and political career should have been finished. A lawyer who advocates breaking treaties and ignoring the cornerstones of domestic and international law is not usually considered to fill a vacancy on the Supreme Court or any other high position in government. And certainly someone whose legal opinions paved the way to actual torture should have been written off as ethically repugnant.

Yet, here he was, Alberto R. Gonzales, the President’s Counsel, nominated to be the Attorney General of the United States. Here was a man who should have been legally, politically and ethically ostracized after the leak of his January 25th 2002 memorandum, smiling before the cameras.

The Gonzalez Memorandum paved the road to the abuses and tortures of Guantanamo and Abu Ghraib: it still is shocking to read. Early in 2002, Secretary of State Colin Powell had asked the President to reconsider his decision not to apply the Geneva Conventions to the war in Afghanistan. Powell wanted to insure U.S. credibility and moral authority in the prosecution of the war. He strongly favored treating all prisoners in accord with the Geneva Conventions, arguing that application of Geneva would protect the lives and safety of captured U.S. soldiers, so that they in turn would be treated as prisoners of war and protected by the Conventions.

Gonzales argued otherwise. In his memorandum, he said the President could decide not to apply the Geneva Conventions, even though they are a treaty of the United States ratified by the Senate and, as such, the supreme law of the land. He told the President that no individual hearings were necessary for those captured in the war with Afghanistan, and that the President could simply make a blanket determination that no prisoners were prisoners of war.

Gonzales told the President to ignore the law, and rationalized why: there was, he said, a need to “quickly obtain information from captured terrorists.” He did not explain how any prisoner could be determined to be a “terrorist” without the hearings required by the Geneva Conventions, but he brushed that issue aside. To Gonzales, Geneva’s limitations on questioning — forbidding torture, inhuman treatment, and outrages on personal dignity- were “obsolete.”

As Gonzales followed this line of thinking, he ran into a problem: the War Crimes Act. That U.S. statute criminalizes grave breaches of the Geneva Conventions, whether or not the prisoner is a POW. Gonzales worried in his memo that “it is difficult to predict the motives of prosecutors and independent counsel… in the future.” Therefore, he concluded, a presidential determination not to apply the conventions “would provide a solid defense to any future prosecution.”

This part of Gonzales’ memorandum makes clear that the Bush administration, as early as January 2002, was planning on using (or already had used) interrogation techniques that it thought might constitute “inhuman treatment” and violate the conventions, thereby opening itself up to criminal prosecutions. In fact, as we now know, Secretary of Defense Donald Rumsfeld did authorize techniques for use against prisoners in Guantanamo that would never pass muster under the Geneva Conventions. These techniques of interrogation were then brought to Iraq in the effort to “Gitmoize” interrogations. The scandal of Abu Ghraib was the result.

Revelations from both prisoners and guards at Guantanamo now tell us just what ignoring the Geneva Conventions meant in practice. In March of 2004, after their release, three young men from the United Kingdom known as the Tipton 3 told of their abuse and torture at Guantanamo. They suffered long periods of isolation, stripping, being held in stress positions for as many as twelve hours and the use of dogs. Guards later confirmed much of this abuse, including the stripping of prisoners to their underpants, chaining prisoners hand and foot to a steel ring in the floor, and bombarding them with strobe lights, loud music and very cold temperatures. In the case of the Tipton prisoners the techniques gave the United States information–except, like much of the intelligence extracted by such means, it turned out to be completely false. Even the cold expediency of Gonzales’ argument–that inhuman treatment was necessary to get information–turned out to be mistaken.

The torture scandal caused irreparable damage to wrongly detained prisoners, to the reputation and future safety of U.S. troops, and to the rule of law. Gonzales’ legal memorandum, which paved the way for the scandal, is a document that should shame this country.

Gonzales’s legal reasoning has been repudiated in the Courts. In June of this year the Supreme Court ruled that that indefinite detention for the purpose of interrogation is not authorized. And recently, a federal court judge said that the Geneva Conventions applied and that those imprisoned there were entitled to POW status.

But the political and ethical repudiation of Gonzales’ thinking must be equally firm. What will happen now to the career of a man who advised the President to ignore the law? Is it possible that a lawyer who suggested that inhuman treatment of prisoners is justified can be promoted to the highest legal office in the land? Can someone who was so wrong about the acceptability and usefulness of torture become the Attorney General? Rejecting the nomination of Alberto Gonzales would demonstrate that America rejects abuse and torture, that we believe in the rule of law, and that we want to be part of a world where prisoners are treated humanely.