I wasn't "torturing" him. I was "interrogating" him.
So here's what I get for reading National Review every once in a while -- I see their point.
Rich Lowry on the torture memos:
At Abu Ghraib and Guantanamo Bay there have been unauthorized abuses and acts of torture, but these aren't the same as the sanctioned interrogation methods (e.g., making prisoners assume "stress positions"), which are tough, but appropriate. The former should be punished; the latter are necessary to fighting a war in which intelligence is paramount. Some perspective: According to the Schlesinger report: "Since the beginning of hostilities in Afghanistan and Iraq, U.S. military and security operations have apprehended about 50,000 individuals. From this number, about 300 allegations of abuse in Afghanistan, Iraq and Guantanamo have arisen."Makes sense, doesn't it? Rich Lowry's interpretation of the purpose of the documents is correct, and it is certainly within the realm of possibility that the Gonzales memos and the Abu Ghraib scandal show correlation but not causation.
Where Lowry misses the point, however, is the latitude afforded by those documents, and what is under debate is the specific intent of the documents, i.e., did Gonzales specifically intend to give the Bush Administration free reign on hooking car batteries to a detainee's scrote and cause him life-long medical problems?
The definition of torture is all about intent. The report defines the difference between torture and interrogation by the action's intended result: "...the statute requires that severe pain and suffering must be inflicted with specific intent... In order for a defendant to have acted with specific intent, he must have expressly intended to achieve the forbidden act." Next paragraph: "...the infliction of such pain must be the defendant's precise objective." Basically, as I understand it, if the defendant knows full well, even if he is performing an interrogation, that attaching a car battery to a scrote will cause life-long pain and anguish, then its torture. Right. Excellent. Torture defined.
Then, there's the memo, which makes it clear that "...the US will continue to be constrained by (i) it's commitment to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of [the Geneva Convention]..."
Unfortunately, none of this matters. The report states that federal courts have no jurisdiction over interment camps on foreign soil, including Abu Ghraib and Guantanamo Bay; therefore, the prisoners have no access to habeas corpus ; for that matter, how could they make an accusation of torture? Furthermore, in the memo, Gonzales states very clearly that the Geneva convention does not apply to conflicts with Al Qaida or the Taliban: "...the policy does not apply to a conflict with terrorists, or with irregular forces, like the Taliban, who are armed militants that oppressed and terrorized the people of Afghanistan." Thus, both documents state that the president has the Constitutional authority to override anything outlawing torture when dealing with enemy combatants who aren't employed my a national army and are not detained on American soil.
So, yes. Lowry is right; on the surface, the purpose of the report and the memo are to make it clear that we can use force on prisoners to get much needed information. However, the memos also make it clear that even if we do hook a car battery up to a prisoner's scrote and cause him excessive harm, we can get away with it. Just like torture, what we need to know is Gonzales' (and, for that matter, the administration's) intent in writing the documents -- were they looking for a way to justify the car-battery/scrotum scenario?
With answers like this, it looks like we'll never know:
LEAHY: Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief-override and immunize acts of torture?I'm not a lawyer, so if I've gotten anything wrong in my laymen's analysis of this data, please correct me in the comments and accept my apologies.
GONZALES: First of all, Senator, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.
LEAHY: But I'm trying to think what type of opinions you might give as attorney general.
Do you agree with that conclusion?
GONZALES: Sir, again...
LEAHY: You're a lawyer, and you've held a position as a justice of the Texas Supreme Court. You've been the president's counsel. You've studied this issue deeply. Do you agree with that conclusion?
GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional.
And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle.
Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that, in fact, a president had the authority under the Constitution to...
LEAHY: Mr. Gonzales, I'd almost think that you'd served in the Senate you've learned how to filibuster so well. Because I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief-override and immunize acts of torture?
GONZALES: With all due respect, Senator, the president said we're not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors.
UPDATE: In the comments, I have posted Sen. Dick Durbin's questions and the answers he received. Durbin is more direct than Leahy, who's a bit of a codger, and Durbin is smart as a whip. Get it? Smart as a Whip? Oh, I kill me....
3 Comments:
Sounds about right. Gonzales is dodging – which is no surprise. I would too. He's got a clear and unobstructed path to power. Only unseemly admissions of complicity in an ethically suspect conspiracy could trip him up. In such circumstances, it's best to just look like a little weasel.
Leahy, on the other hand, is a stupid pussy. Here's what that geriatric motherfucker ought to have said: "Hypothetical!? Listen dipshit…the question was clear, but I'll polish it up for you anyway. Does the current and totally real President currently and in our present reality have and/or possess the actual authority to immunize acts of torture? And let me warn you, Speedy… if you say the word 'hypothetical' one more time I'm going to wire your American flag lapel-pin with 2,000 volts and jam it up your urethra."
I'm having trouble saying it...but...i'd vote for kelly.
Dick Durbin, on the other hand, is not a stupid pussy. Here's the transcript.SEN. RICHARD DURBIN (D-IL): Thank you, and congratulations, Mr. Chairman, on your new appointment. I'm looking forward to working with you, and I thank you for your phone call over the holiday break to talk about some of the big issues we face. It was a welcome opportunity to discuss a lot of things that we will concern ourselves with. Judge Gonzales, thank you for being here. My thanks to your family for their patience in waiting through all these questions and those that will follow. I think that Senator Specter has done a great service to the White House by moving this hearing as quickly as he has -- January 6th, two days after the swearing in of the new members of the Senate. It's understandable: This is a critically important job for the safety of America, and we need to fill it as quickly as we can. I am sorry that there has been some breakdown between this committee and the White House about the production of documents. As I told you in our office meeting, it is very difficult for us to sit on this side of the table and believe that we have the whole story when the White House refuses to produce documents that tell us what happened about many of the issues that we are raising. But based on what we do have, I want to try to get into a few specific questions on the issue of torture. The images of Abu Ghraib are likely to be with us for a lifetime and beyond, as many images of war can be. The tragedy of Abu Ghraib and the embarrassment and scandal to the United States are likely to be with us for decades and beyond. Yesterday we paid tribute to our colleague Congressman Robert Matsui, not only a great congressman, but particularly great in light of the fact that as a Japanese-American he was sent to an internment camp by his government that did not trust his patriotism or the patriotism of his family. That shameful chapter in American history is recounted even today, more than 50 years later, as we think about it. I'm afraid that the torture that occurred in Abu Ghraib and Guantanamo will similarly be recounted 50 years from now as a shameful chapter in American history. When you answered Senator Kohl, you said we're going to divide what happened in Abu Ghraib into two areas. Physical and sexual torture never acceptable, some idea of fun by depraved people, and you condemned it; but a second area, interrogation techniques that went too far, and you conceded that those interrogation techniques might have migrated or started at Guantanamo and somehow made it to Iraq. My question to you is, would you not also concede that your decision and the decision of the president to call into question the definition of torture, the need to comply with the Geneva Conventions, at least opened up a permissive environment for conduct which had been ruled as totally unacceptable by presidents of both public -- both parties for decades?
MR. GONZALES: Thank you, Senator, for the question. Maybe perhaps I did misspeak. I thought I was clear that I wasn't dividing up the categories of abuse to two categories; that that division had been done within these reports themselves. And those reports did indicate that there was migration as to the second category. But the reports and the briefings were fairly clear, in my judgment, and others may disagree, that the reasons for the migration were because there was inadequate training and supervision. That if there had been adequate training and supervision, i.e., if there had been adherence to doctrine, then the abuses would not have occurred. And that's what I see in the reports and what I see in the briefings. As to whether or not there was a permissive environment, you and I spoke about this in our meeting. The findings in these eight reports universally were a great majority, overwhelming majority of our detention operations had been conducted consistent with American values and consistent with our legal obligations. What we saw happen on that cell block in the night shift was limited to the night shift on that cell block with respect to that first category, the more offensive, the intentional severe physical and the sexual abuse, the subject of those pictures. And this isn't just Al Gonzales speaking, this is what, if you look at the Schlesinger report, concludes. And so what you see is that you've got this kind of conduct occurring on the night shift, but the day shift, they don't engage in that kind of conduct because they understand what the rules were. And so I respectfully disagree with the characterization there was some sort of permissive environment. That's just not the case. The facts don't bear that out, sir.
SEN. DURBIN: Then let's go to specific questions. Can U.S. personnel legally engage in torture or cruel, inhuman or degrading treatment under any circumstances?
MR. GONZALES: Absolutely not. I mean, our policy is we do not engage in torture.
SEN. DURBIN: Good. Glad that you stated that for the record. Do you believe there are circumstances where other legal restrictions, like the War Crimes Act, would not apply to U.S. personnel? (Pause.)
MR. GONZALES: Senator, I don't believe that that would be the case. But I would like the opportunity -- I know I want to be very candid with you and obviously thorough in my response to that question. It is sort of a legal conclusion, and I would like to have the opportunity to get back to you on that.
SEN. DURBIN: I'll give you that chance. In your August memo, you created the possibility that the president could invoke his authority as commander in chief not only to suspend the Geneva Convention but the application of other laws. Do you stand by that position?
MR. GONZALES: I believe that I said in response to an earlier question that I do believe it is possible, theoretically possible, for the Congress to pass a law that would be viewed as unconstitutional by a president of the United States. And that is not just the position of this president. That's been the position of presidents on both sides of the aisle. In my judgment, making that kind of conclusion is one that requires a great deal of care and consideration. But if you're asking me if it's theoretically possible that Congress could pass a statute that we view as unconstitutional, I'd have to say -- concede, sir, that that's -- I believe that that's theoretically possible.
SEN. DURBIN: Has this president ever invoked that authority, as commander in chief or otherwise, to conclude that a law was unconstitutional, and refused to comply with it?
MR. GONZALES: I believe that I stated in my June briefing about these memos that the president has not exercised that authority.
SEN. DURBIN: But you believe he has that authority; he could ignore a law passed by this Congress, signed by this president or another one, and decide that it is unconstitutional and refuse to comply with that law?
MR. GONZALES: Senator, again, you're asking me where the -- hypothetically, does that authority exist? And I guess I would have to say that hypothetically that authority may exist. But let me also just say that we certainly understand and recognize the role of the courts in our system of government. We have to deal with some very difficult issues here, very, very complicated. Sometimes the answers are not so clear. The president's position on this is that ultimately the judges, the courts will make the decision as to whether or not we've drawn the right balance here. And in certain circumstance the courts have agreed with the administration positions; in certain circumstances, the courts have disagreed. And we will respect those decisions.
SEN. DURBIN: Fifty-two years ago, a president named Harry Truman decided to test that premise -- Youngstown Sheet and Tube versus the Supreme Court -- or in the Supreme Court -- versus Sawyer in the Supreme Court. The Supreme Court said, as you know, "President Truman, you're wrong. You don't have the authority to decide what's constitutional, what laws you like and don't like." I'm troubled that you would think, as our incoming attorney general, that a president can pick or choose the laws that he thinks are unconstitutional and ultimately wait for that test in court to decide whether or not he's going to comply with the law.
MR. GONZALES: Senator, you asked me whether or not it was theoretically possible that the Congress could pass a law that we would view as unconstitutional. My response was -- is that obviously we would take that very, very seriously, look at that very carefully. But I suppose it is theoretically possible that that would happen. Let me just add one final point. We in the executive branch, of course, understand that there are limits upon presidential power; very, very mindful of Justice O'Connor's statement in the Hamdi decision that "a state of war is not a blank check for the president of the United States" with respect the rights of American citizens. I understand that, and I agree with that.
SEN. DURBIN: Well, let me just say, in conclusion, I'm glad to hear that. I'm troubled by the introduction -- the hypothetical is one that you raised in the memo, relative to torture, as to whether the president had the authority as commander in chief to ignore the Geneva Conventions or certain other laws. This is not something that comes from our side of the table of our own creation, it is your creation, a hypothetical you created. My concern is this; I do not believe that this government should become a symbol for a departure from time-honored traditions where we have said that we will not engage in torture, directly or indirectly by rendition, which I hope to ask you about in the next round; that we will stand by the same standards of Geneva Conventions since World War II and, frankly, dating back to Abraham Lincoln in the Civil War in terms of the treatment of prisoners. I am concerned that that round of memos that went through the Department of Justice -- Mr. Bybee -- into the Department of Defense, into Guantanamo, and then migrated somehow to interrogation techniques in Abu Ghraib has stained our world reputation. I want to win this war on terrorism, but I don't want to do it at the expense of our soldiers who may some day become prisoners themselves. Thank you, Mr. Gonzales.
Post a Comment
<< Home