Ivan Eland: Will the U.S. Senate Endorse Torture?

Despite evasive answers to questions about his role in creating a pervasive policy environment that made the U.S. government’s torture of prisoners just good, clean fun, White House Counsel Alberto Gonzales seems poised to win Senate approval as Attorney General. That shocking outcome would reaffirm that the politically minded Congress often takes a distorted view of what this country is supposed to stand for.

In the past, Congress has meted out punishments to presidents or their prospective appointees for far lesser transgressions than culpability in torture. For example, President Bill Clinton was impeached—a rarity in American history—by Congress for having sex with an intern and lying about it. Although Clinton was guilty of bad behavior, this breach of ethics nowhere approached the severity of enabling the brutal treatment of prisoners in the government’s custody. Similarly, Congress denied Judge Robert Bork a seat on the Supreme Court, not because his sentencing of prisoners was too harsh, but because it merely viewed his policy views as out of the mainstream.

Although I dislike the term “un-American”—since throughout U.S. history it has often been applied to people who disagreed with whatever war was then the rage—I think the term can safely be applied to torture. Congress should deny high office to anyone who helps create a bureaucratic climate that implicitly endorses such reprehensible behavior. Gonzales has done exactly that.

In January 2002, he drafted a memorandum that advised President Bush that the Geneva Conventions governing the treatment of prisoners did not apply to people apprehended in Afghanistan during war and that some provisions of those conventions were “obsolete” and “quaint” (the administration is now making noise about renegotiating the conventions). Regardless of whether the Taliban regime had harbored al Qaeda and whether the U.S. invasion of that nation was thus morally justified, captured fighters repelling a foreign invasion should be accorded the protection of the Geneva Conventions. Undoubtedly to deal with this issue, the administration, in February 2002, announced that the conventions would apply to Taliban prisoners but not al Qaeda. Similarly, Gonzales admitted during his confirmation hearing that the U.S. government has issued a legal opinion that non-Iraqi fighters captured in Iraq are not protected by the conventions. Even if “terrorists” are not to be accorded the protection of the conventions—counter-intuitively a dubious policy—it is far from clear that all al Qaeda in Afghanistan and all non-Iraqis fighting the United States in Iraq fit under that heading. For example, contrary to conventional wisdom, the vast bulk of al Qaeda fighters are ordinary foot soldiers and not special forces (terrorists).

More important, although terrorists who kill innocents don’t deserve to be protected by the conventions, it may be smart U.S. policy to afford them such protection. In the future, other nations could label U.S. forces as “terrorists” to deny them the shielding against torture provided under the conventions. Republican Senator Lindsay Graham of South Carolina had this in mind at the Gonzales confirmation hearings when he accused the administration of “playing cute with the law” in handling captives in Iraq and elsewhere. He criticized the administration for dramatically undermining the campaign against terrorism by squandering the moral high ground and endangering the lives of any U.S. soldiers captured.

Even worse, Gonzales by-passed normal channels at the Justice Department when he sought legal advice on the permissibility of coercive interrogation techniques and the applicability of the Geneva conventions. Gonzales’ prodding led to an August 2002 department memo that defined torture narrowly and asserted that the president could evade domestic and international (the conventions) prohibitions against torture under the mantle of U.S. national security. Shockingly, the memo limited the definition of torture punishable by law to physical pain “of an intensity akin to that which accompanies serious physical injury such as death or organ failure.” Under questioning at the confirmation hearing, Gonzales contracted amnesia about his role in formulating this memo.

Worst of all, Gonzales would not categorically reject as illegal the use of torture by U.S. troops or intelligence operatives in all circumstances. No matter that according to experts, torture is usually ineffective for obtaining truthful and accurate information from prisoners. The captive will simply agree with anything to stop the unpleasantness.

Coming on the heels of the president’s bizarre retention of Donald Rumsfeld as Secretary of Defense (Rumsfeld’s blundering in Iraq includes the Abu Ghraib prison torture scandal), the administration’s nomination of Gonzales for Attorney General is an exercise in “in-your-face” chutzpah that is likely to further inflame the Islamic world and result in an even greater threat to U.S. security in the form of blowback terrorism. The Senate should come to its senses and strike twin blows for American security and values by rejecting the Gonzales nomination.

Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute in Oakland, California, and author of the books The Empire Has No Clothes, and Putting “Defense” Back into U.S. Defense Policy.

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