Gonzales Faces Stormy Hearing Over Torture Memos

by Jim Lobe

(IPS) WASHINGTON -- Led by a dozen retired generals and admirals, including a former chairman of the Joint Chiefs of Staff, human rights groups are urging the U.S. Senate to carefully scrutinize the role of White House Counsel Alberto Gonzales in devising detention and interrogation policies for the Bush administration's "war against terrorism" before confirming him as attorney general.

Gonzales, who, if confirmed, would be the first Hispanic citizen to serve in a top-ranking Cabinet post, has been strongly criticized by rights groups for approving a series of memoranda which critics charge led directly to the Abu Ghraib prison abuse scandal and other actions by the U.S. armed forces that have come to light since last April.

Among the most controversial memos were those that argued that the protections accorded prisoners of war (POWs) by the 1949 Geneva Conventions should not apply to suspected terrorists and that national and international laws prohibiting torture do "not apply to the president's detention and interrogation of enemy combatants."

"Mr. Gonzales has the burden of demonstrating that he can exercise independent judgement within the rule of law," said Lisa Massimino, the Washington director of Human Rights First (HRF), formerly the Lawyers Committee on Human Rights. "His record so far is not encouraging."

Gonzales, who, due to the 55-45 majority Republicans now enjoy in the Senate, is expected to be approved, begins his confirmation hearings Thursday in what some of his defenders claim will be a "battle royal" between the administration and "the Left," apparently meaning human rights groups and some Democratic and even a few Republican lawmakers who have expressed concerns about Gonzales' record.

"The stakes in this battle are high," wrote Lee Casey and David Rivkin, associates of the Federalist Society, a right-wing lawyers' group whose members dominate the upper reaches of the Bush administration, particularly the Justice Department, the Pentagon, and Vice President Dick Cheney's office, as well as the White House itself.

"At issue may be nothing less than the future of American sovereignty," they argued in a 'National Review' article last week in a reference to the Society's views that the U.S. should not be bound by provisions of international law that it has not expressly ratified.

Gonzales, whose rags-to-riches story and Hispanic ancestry make him a particularly appealing nominee -- especially for Democrats worried about recent Republican inroads among Latino voters -- grew up in Houston, Texas, where he was the second of eight children in a house that lacked both hot water and a telephone.

Despite those handicaps, he graduated from Harvard Law School and was hired by Texas' most powerful law firm. After Bush was elected Texas governor in 1994, he appointed Gonzales as his general counsel, then secretary of state, and finally, in 1999, to the Texas Supreme Court, before taking him to Washington as White House counsel where he dispensed legal advice to the president and his top aides.

As a judge, Gonzales earned a reputation as a moderate conservative who was willing to apply the law, on abortion, for example, regardless of his personal political views. While considered much less politically extreme than John Ashcroft, Bush's first attorney general, he is also seen as absolutely loyal to the president.

Although Human Rights Watch (HRW) denounced Gonzales' appointment as "a poor choice" after his nomination in November, other critical rights groups, including HRF and the American Civil Liberties Union (ACLU), have been somewhat more circumspect.

But all groups have demanded -- so far without success -- that the administration hand over to the Senate key internal documents that would shed light on Gonzales' precise role in approving the most controversial memos bearing on the "war against terrorism." So far, the most provocative memos, including the ones on the Geneva Conventions and the power of the president to essentially redefine torture in ways that would protect U.S. personnel from future prosecution under national or international law, were initially leaked to the press by unhappy insiders.

The paper trail disclosed to date, however, clearly establishes that Gonzales played a central role in three major policy documents: the original November 2001 presidential order establishing military commissions that allowed terrorism suspects to be secretly charged, tried, and even executed without basic due process protections; the January 2002 claim that the president had the constitutional authority to deny the Geneva protections, some of whose provisions Gonzales described as "quaint" and obsolete," to detainees in the war in Afghanistan; and the August 2002 Justice Department memo that contended the president has "commander-in-chief authority" to order torture and proposed potential legal defenses for U.S. officials who may be accused of torture.

All of these positions have since been rejected either by the courts or, in the case of the notorious "torture memo," by the Justice Department, which in a new opinion released just last Thursday significantly broadened the definition of torture for which individuals could be prosecuted from the extraordinarily narrow one in the August 2002 memo.

The new opinion, which significantly did not address one of the most controversial issues -- whether the president as commander-in-chief could override U.S. laws or even the constitution -- was apparently designed to ease Gonzales' confirmation. Ironically, according to Massimino, its failure to address the president's commander-in-chief authority, which she described as the "most explosive" issue raized by the legal debate over the terrorism war, "is more likely to cause problems for Mr. Gonzales than help him."

Gonzales and his defenders have maintained that the terrorism war represents a unique and unprecedented threat to the United States that cannot be addressed effectively through the Geneva Conventions and other international law. At the same time, they have insisted that torture memos were legal opinions that had no impact in the field, least of all in the abuses at Abu Ghraib which they argued were the work of a "few bad apples."

But the latter position has become largely unsustainable as a tide of new disclosures over the past six months -- most recently, documents obtained by the ACLU that detailed complaints by the FBI and the Defense Intelligence Agency (DIA) on how detainees in Iraq were being treated -- has shown that abuses, including beatings, sexual humiliation, and torture, were much more widespread than the administration has admitted.

"I would buy the "a-few-bad-apples" [explanation], but once you see a pattern emerging, it's no longer looks like a few a bad apples," said Gen. James Cullen (ret.), one of a dozen of retired officers, including former Joint Chiefs of Staff chairman John Shalikashvili, who wrote to the Judiciary Committee this week to express "deep concern" about Gonzales' nomination. Cullen said he personally opposed the nomination.