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"Gonzales
will do nothing but advance this country into a
greater state of fascism. His commitment to follow the
law and protect American rights means nothing if he
views the rest of the law with the same lens that he
used to view the 'torture' laws."
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WASHINGTON, D.C. (1/10) - The
central issue during the
Senate Judiciary
Committee
hearings this past week on the confirmation of Alberto
Gonzales as the
attorney general of the United States,
was whether White House policy condones
torture and whether torture is justified.
The official position of the White House is that there has never
been a policy condoning torture. However, according
to a number of authorities, U.S. and international laws against
torture and inhume treatment of prisoners have been repeatedly
violated by the U.S.
The problem started at the top.
According to Gonzales,
there was a point
that important information was needed to save innocent lives and
a decision on torture had to be made.
Bush and Rumsfeld approved
the torture plan, over objections by the State Department and
requests to reconsider the new policy.
Gonzales admits that the President was involved in the debate
and decisions on the White House torture policy which sought the
outer limits of permissible lawful torture in order to obtain
information and further the President's agenda.
The widely disseminated Gonzales/Bush "torture memos" sent a
signal to U.S. troops that torture is permitted. and resulted
in torture in Iraq, Afghanistan, Gauntanamo and in other countries
to which the U.S. delivered prisoners.
The "torture memos" argued in essence that Bush was above the
law in war. By seeking to redefine torture the President invaded the
province of Congress by creating new Presidential laws on torture
which were in complete contradiction to existing law. The
dissemination of the "torture memos" - which instructed on
guidelines for the outer limits of permissible torture - constituted
de facto approval of torture by the President.
George Bush directly
tied to torture decision
According to the
testimony of at the confirmation hearings by Gonzales,
Bush personally participated in the torture debates and
decisions on the use of torture to get information from
prisoners.
Gonzales emphasized the issue of torture was important to
Bush. "This was an issue that the White House cared very
much about," Gonzales testified under oath. He went on to
state that, "As we have debated these questions,
the president has made clear that he is prepared to
protect and defend the United States and its
citizens and will do so vigorously."
With regard to the decision not to apply the Geneva
Convention to prisoners deemed to be al Qaida, Gonzales
confirms the President's participation, stating: "And so I
do believe the decision by the president was
absolutely the right thing to do."
So, Gonzales establishes
that Bush was involved in the "debate" on torture and
participated in the decisions that lead to application
of torture and inhumane treatment of prisoners. The
torture at abu Ghraid and elsewhere goes to the very top.
If it involves just a few bad apples, that's where they
are.
Impetus is added to the fact that Bush himself approved methods of
"torture" by the fact that he was informed of it an did nothing.
Bush personally received a memo in January of 2002 that specifically
advising him that "torture" was occurring at Abu Ghraid prison. After
receiving this information he did nothing until after the
story broke on CBS's 60 Minutes and in News Week and
the New Yorker in May - four months after Bush was informed
of the "torture."
For the President of the U.S. to receive a memo, if not briefing,
where the word "torture" was used in connection with action of U.S.
military and then do or say nothing about it for four months, until
the matter broke in the news, is evidence of the President's
approval, not just of the methods employed, but, of "torture"
itself. There should have been shock, not silence. There should have
been action, not apathy. Just the words "torture" and "U.S." in the
same breathe is a blow to American democracy. Silence by the
President makes it all the more staggering.
The world is watching
The world is watching. As put by the Japanese Times, "A
reluctance to move up the chain of command in the face of
overwhelming evidence of knowledge and approval by ranking
officers will only convince audiences around the world
that the U.S. is not interested in truth or justice. And
perceptions are critical in the war on terror. The
greatest asset that the U.S. and its allies have in this
struggle is the belief that they are fighting for a
greater good. The Abu Ghraib torture photos suggest that
there is a yawning divide between America's self-appointed
role as the defender of freedom and human rights, and
reality. That gap must be bridged if Washington is to
reassert its claim to moral leadership. And that, not the
much vaunted military, is its most crucial asset in the
world today."
Gonzales hearing
Although Gonzales knew the "torture memos" created on his watch
in January and August 2002 would be a central issue in the
confirmation hearings, he was prepared to be unprepared. He used, I
must "review" the documents, I do not "remember," and I don't want
to give you the wrong answer, repeatedly to, as the Bush
administration terms it, dodge the bullet and avoid answering key
questions in the public hearings. It looks like the reward for
evasiveness and his dedication to setting standards for "torture"
will be a
promotion to the
attorney general of the United States.
At the hearing there was reference to substantial evidence that
for at least two years
the Bush administration systematically condoned torture as a
matter of practice and policy. (See TMT article about Abu Ghraid:
Four legs good, two legs baaad!,
Putting the brakes on the animal farm)
Starting as early as January 2002,
George Bush was personally involved in establishing a White House
policy on torture that encouraged torture, by creating technical
ostensible defenses to torture, creating "rights free zones," by
permitting other countries to do the torture for us,
by focusing on defining the outer limits of lawful torture
and by disseminating instructions to the U.S. military making
the standards for torture by U.S. soldiers so liberal that anything
short of a "good faith" intent to kill or "good faith" intent to
permanently maim was acceptable.
According to Senator Leahy, "[S]enior
officials in the Bush White House, the Ashcroft Justice
Department, Rumsfeld Pentagon, set in motion a systematic
effort to minimize, distort and even ignore our laws, our
policies, our international agreements on torture and the
treatment of prisoners. Defense Secretary Rumsfeld, and
later Lieutenant General Ricardo Sanchez, authorized the
use of techniques that were contrary to both U.S. military
manuals, but also international law. Former CIA Director
Tenet requested and Secretary Rumsfeld approved the secret
detention of ghost detainees in Iraq; did that so they
could be hidden from the International Committee of the
Red Cross. And still unexplained are instances where the
U.S. government delivered prisoners to other countries so
they could be tortured."
Senator
Kennedy noted, that after contentions by the Bush
administration that only a few bad apples were involved in
the Abu Griad prisoner abuse scandal, "we
learned that the Defense Department's working group report
of April 2003 had provided the broad legal support for the
harsh interrogation tactics, and it dramatically narrowed
the definition of torture, and it recognized the novel
defenses for those who committed the torture. Then we
learned that the legal basis for the working group report
had been provided by the Justice Department in the Bybee
memo."
More evidence of torture was
discovered by the media.Seymour
Hersh’s
article
“The
Gray Zone,”
published on May 15 by the New Yorker, reveals how
Rumsfeld, assisted by his Undersecretary for Intelligence
Stephen Cambone, set up a secret program to assassinate
targeted individuals in the Bush administration’s “war on
terror.” This program was later extended to the
interrogation of prisoners captured in Afghanistan and
Iraq. According to Hersh, the program “encouraged physical
coercion and sexual humiliation of Iraqi prisoners in an
effort to generate more intelligence about the growing
insurgency in Iraq.”
An article in the May 24 issue
of Newsweek, titled “The
Roots of Torture,” revealed the bitter
internal disputes triggered in the US government by the
Bush administration’s decision to discard the Geneva
Conventions and foster a general atmosphere of lawlessness
with regards to detainees held by the US.
Existing law on "torture"
After World War II the U.S. became a
signatory to the Geneva Convention in order to assure humane
treatment of prisoners of war. During the Vietnam war official U.S.
policy prevented
torture even though the enemy did not wear uniforms.
Congress adopted an anti-torture law in 1994 that barred
Americans abroad acting under U.S. authority from inflicting "severe
physical or mental pain."
The Universal Declaration of Human Rights states, “no
one shall be subjected to torture.”
The
Army Field Manual itself reflects our nation's long-held policies
toward prisoners, stating: "U.S. policy expressly
prohibits acts of violence or intimidation, including physical,
mental torture, threats, insults, or exposure to inhumane treatment,
as a means to aid interrogation."
The United Nations Convention Against Torture states:
“No official of the government, federal, state or local,
civilian or military, is authorized to commit or to instruct anyone
else to commit torture. Nor may any official condone or tolerate
torture in any form. No exceptional circumstances may be invoked as
a justification of torture. U.S. law contains no provision
permitting otherwise prohibited acts of torture or other cruel,
inhuman or degrading treatment or punishment to be employed on
grounds of exigent circumstances (for example, during a 'state of
public emergency') or on orders from a superior officer or
public authority.” -- (U.S. Report to the UN Committee Against
Torture, 1999) (Emphasis added.)
The "torture memos"
The "torture memos" during 2002 (See
full text), under Gonzales' counsel, took center
stage in the confirmation hearings. The discussion centered on two
memos. One in January 2002 and the other in August 2002.
Judge Gonzales had issued an opinion to the president that the
Geneva Convention did not apply with respect to certain of the
combatants. On addition, the memo set Bush above the law in times of
war.
The committee sought further amplification on a number of
substantive issues from these memoranda.
It was noted that in the memorandum of January 25th, 2002, it was
said, "In my judgment, this new paradigm" - referring to the war on
terrorism - "renders obsolete Geneva's strict limitations on
questioning of enemy prisoners."
The other is a August 2002 Justice Department memo sought by
Gonzales which outlines how to avoid violating U.S. and
international terror statutes while interrogating prisoners by
setting a high threshold for the definition of torture.
In defense of
the memorandum, Republicans directed attention to Judge
Gonzales' statement that, "In the treatment of detainees,
the United States will continue to be constrained by its
commitment to treat the detainees humanely and to
the extent appropriate and consistent with military
necessity in a manner consistent with the principles
of the Geneva Convention." In other words, all enemy, but
al Qaida are under the Geneva Convention and all the enemy
are al Qaida. It is a case where the exception swallows
the rule and the rule means nothing .
The choice -
Gonzales' interpretation
At the the time Gonzales and Bush decided it was necessary to
interpret the law regarding torture they had two choices. Create an
interpretation that permits torture or one that protects humane
treatment. Gonzales and Bush chose the former. When interpreting the
law on torture one can selectively emphasize wording that
permits the extremes within the law, or, emphasize the wording that
provides for humane treatment and the prevention.
Gonzales and Bush chose the former.
It is amazing that anyone could take the plain language of any of
the numerous statutes, regulations and laws just sited and interpret
them as permitting the methods Gonzalez and Bush approved. The
"torture memo" for the White House clearly approved torture. The law
they say they were interpreting contained plain language that was
clear and specific. Real simple. The bottom line: no torture.
From a clear "no torture," Gonzales comes up with the "outer limits"
of permissible or lawful "torture." The methods approved by Bush and
Gonzales were unlawful torture no matter how you cut it. Lawful
torture is an oxymoron.
The law is not an inconvenience that can just be discarded at the
pleasure of the President and rewritten to fit the agenda at hand.
One cannot simply redefine the word "torture" and make methods under
established law obsolete.
The President cannot lawfully redefine or make new law in the office
of the White House. The executive branch of government executes the
laws, it does not make them. Making law is the province of
Congress. Congress is the legislative branch of the government, not
the President.
Attempts by Bush and Gonzales to make their own "new" law to
permit torture cannot be justified as mere interpretation. The
"definition" defense is tantamount to a lie. The plain language of
existing law is so clear, that it did not require redefinition.
Gonzales argues that a definition was required because there was no
case law on the issue of permissible torture. There may be no cases
because no one else has seen the need to define what "NO TORTURE"
means. The law requires application, not definition. The President
cannot create law by creating definitions.
Nor can their new definition of "torture," be justified as
Presidential policy since Presidential policy cannot be
unlawful.
What Bush and Gonzales were doing was writing "new" law, their law
that they could use to justify the use of torture.
There is no lawful torture permitted under U.S. and international
law and for the White House to create a basis for it - in order to
justify an agenda of the President - is setting the White House
above the law and outside it. If the rule of law is to be the
hallmark of democracy, it has to be obeyed, even by the President.
Although
Congress, military
code, tradition and international law have opposed torture for many
years,
America has changed all this under Bush. Once we opposed torture
on the
grounds of principle, now principle
is used to justify torture. Now,
whether there is ":torture" or not hinges on subjective
opinions based on carefully crafted definitions and word nuances.
In order to make torture legal, just redefine the word "torture" to
mean methods that would not produce pain "of an intensity akin to
that which accompanies serious physical injury such as death or
organ failure." That definition doesn't leave much that cannot be
done during interrogations and violates the spirit, if not the
letter, of a large body of existing law.
The choice for "torture" over humane treatment speaks volumes for
the core values of Gonzales and Bush. This choice has had daily
consequences to many prisoners and global consequences to the image
of America to the world.
At least 10 incidents of prisoner abuse
have been substantiated at Guantanamo, all but one from 2003 or this
year, AP reported.
See
more.
"Guantanamo has become an icon of
lawlessness," the human rights group Amnesty International said in a
statement marking Camp X-Ray's third anniversary, "a symbol of the
US government's attempts to put itself above the law."
See more.
Not a reasonable interpretation
How can any reasonable person interpret prohibitions against
"acts of violence or intimidation, including physical, mental
torture, threats, insults, or exposure to inhumane treatment, as a
means to aid interrogation," to exclude every act short of the
specific intent kill, maim or create organ failure?
How can any reasonable person interpret
“no exceptional circumstances whatsoever, whether a state of war or
a threat or war, internal political instability or any other public
emergency, may be invoked as a justification of torture,” to mean
any method short of creating "severe" physical or mental pain?
How can any reasonable person interpret a Congressional bar to all
Americans abroad acting under U.S. authority from inflicting "severe
physical or mental pain," to mean that our troops can do anything
even approaching torture.
If
Gonzales
and Bush
can interpret "NO TORTURE," to mean anything short of
specific intent to kill, maim or destroy organs, and,
then, revise the meaning of
"NO TORTURE,"
to mean anything less than methods which cause "severe"
physical or mental "pain," the interpretation of the law
by these men is dangerous to due process, freedom of
press, the right to vote, the Constitution and methods of
war.
Under the Bush/Gonzales torture policy - before we do what is
humane - it must be determined whether the prisoner is a POW,
whether the Geneva Convention applies, and what is "severe" physical
and mental pain. Issues like "specific intent" to kill, maim, or
destroy are part of guidelines originally disseminated to our
military from the very top.
Definitions are made and remade on
the outer limits of torture and what it means.
Technicalities and loopholes are
sought to justify torture rather than protect human rights.
The issue which the President asks first is how great can the
torture be, not how great should America be. This behind the scenes
approach is indicative of where we are headed under Bush.
It is all part of the view from the top that the enemy is "evil"
and that evil must be destroyed. It is all part of the
dehumanization of mankind. It is part of the
disintegration of what America stands for. It is part
of the drip drip erosion of the America, the hope for the world,
human rights, freedom and liberty. In sum, it is part of the erosion
of humanity.
It is part of an arrogance and hubris of moral superiority and
noble lies for the good of the people that set the actors above the
law.
It is this type of inch by inch taking away of what we
are, that is making us the "them" we so strongly oppose.
Defense of
the "torture memos"