Wednesday, January 05, 2005

The Case Against Alberto Gonzalez

From grannyhelen:
"The Abu Ghraib thing was largely something that affected the media more than anybody else. Most of the people in this country realized this is war, and most of what went on over there is not torture, and in many cases what went on to extract information actually ended up saving people's lives. It's a war, for crying out loud, and the American public is largely understanding of this. It is the left and its media contingent that thinks this is a huge, huge problem for Bush." - Rush Limbaugh, January 3, 2005


Limbaugh, in his piece today, warns of the upcoming furor from Democrats and the left over the nomination of Alberto Gonzales as Attorney General, and chocks this up to little more than political gamesmanship. Says the owner of the golden EIB microphone:

"What did I tell you? That if Bush won reelection, the libs are going to try to impeach him and get him thrown out of office; they're going to use Abu Ghraib as a means of doing it, and here's step #1: Reshow these videos during the confirmation hearings of Alberto Gonzales."


Not that he goes into steps 2, 3 and 4 of this vast liberal conspiracy. He's content enough to outline the resistance to Gonzales as Attorney General as step #1...and the rest will follow.

What does this mean for those of us who are opposed to Gonzales on legal, moral and ethical grounds? We must voice our opposition to this candidate with as much fact and documentation as possible, in order to provide a clear and convincing logical argument to this nominee, so that the far right's charges of political gamesmanship can be shown for the extreme emotional appeals that they really are.

The case against Gonzales' nomination can best be made, in my estimation, in his repeated justification of granting unprecedented and over-reaching power to the Executive Branch, skirting around protections enabled by the separation of powers as outlined both in our Constitution and in case law. Before the draft memo of August 1, 2002 - otherwise known as the "Torture memo" - John Yoo, then deputy assistant attorney general in the Office of Legal Counsel of the Justice Department, wrote a memo shortly after the September 11th attacks that stated that "President Bush had the power to deploy military force "preemptively" against any terrorist groups or countries that supported them--regardless of whether they had any connection to the attacks on the World Trade Towers or the Pentagon."

Newsweek goes onto report that this memo, entitled "The President's Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them", argues:

"...that there are effectively "no limits" on the president's authority to wage war--a sweeping assertion of executive power that some constitutional scholars say goes considerably beyond any that had previously been articulated by the department. Although it makes no reference to Saddam Hussein's government, the 15-page memo also seems to lay a legal groundwork for the president to invade Iraq--without approval of Congress--long before the White House had publicly expressed any intent to do so. "The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of Sept. 11," the memo states."


Newsweek additionally states that "...neither the White House nor the Justice Department has ever disavowed--or for that matter publicly discussed--the similar assertions of presidential power in Yoo's Sept. 25, 2001, memo." It is important to note that the scope of powers outlined in this memo go beyond the joint congressional resolution passed on Sept. 14, 2001, which specifically granted the President authority to respond to the terror attacks of 9-11.

In the January 2, 2005 San Jose Mercury News, Yoo himself goes on record to defend the infamous "Torture memo", which he explains in this article that he helped draft. He explains the insistence that the Geneva Conventions did not apply to either the Taliban or Al-Qaida as follows:

"The Justice Department's Office of Legal Counsel -- where I worked at the time -- determined that the Geneva Conventions legally do not apply to the war on terrorism because Al-Qaida is not a nation-state and has not signed the treaties. Al-Qaida members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians -- violating the fundamental principle that war is waged only against combatants. Consistent American policy since at least the Reagan administration has denied terrorists the legal privileges reserved for regular armed forces.

The Taliban raised different questions because Afghanistan is a party to the Geneva Conventions, and the Taliban arguably operated as its de facto government. But the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields."


What he fails to address is how the above rational against applying the Geneva Conventions to the Taliban and Al-Qaida bled over into confusion regarding the use of torture and the application of the Geneva Convention to the war in Iraq, which had an army of lawful combatants. As Human Rights First, a human rights organization opposing Gonzales' nomination, states, "...Gonzales played a role in creating uncertainty about whether the Conventions' legal protections apply to detainees in Iraq." It specifically cites the memorandum of March 19, 2004 by Jack Goldsmith III, head of the Office of Legal Counsel. The "Goldsmith memorandum" specifically clarifies the policy on relocation of "protected persons" under the Geneva Conventions. Among other things, Human Rights First states that the Goldsmith memorandum:

"...argues that any protected person under the Convention, whether an Iraqi or not, may be transferred out of the country, so long as the military has not accused the individual of wrongdoing. Article 76 of the Fourth Convention provides that "protected persons accused of offenses shall be detained in the occupied country." The Goldsmith memorandum tries to evade this prohibition by concluding that the United States may remove a person from Iraq where the intent is only to interrogate that person for something short of an "indefinite" period - an approach that permits the US military to simply designate all protected persons for interrogation and remove them from Iraq, and out of sight from the ICRC, and any accountability."


But again, if, as Yoo argued previously in the memorandum entitled, "The President's Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them", that there are "are effectively "no limits" on the president's authority to wage war", then this unique interpretation skirting the intent of Article 76 of the Fourth Convention should really come as no surprise. It is, in fact, quite consistent with the view that "...the President's broad constitutional power to use military force to defend the nation, recognized by the Joint Resolution itself, would allow the President to whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters", as Yoo argues later in this same memorandum.

Let's be clear about this: John Yoo's words and opinions are not the core issue here: what is under examination is Gonzales's acceptance and endorsement of these words and opinions, until their extremism became evident in the wake of Abu Ghraib. Indeed, Newsweek reports that not only did Gonzales accept the August 1, 2002 "Torture memo" drafted by Yoo, he worried, "Are we forward-leaning enough on this?" Meaning in the wake of the Administration's tough rhetoric after September 11, was this opinion aggressive enough in its approval of certain otherwise questionable interrogation tactics in President Bush's war on terror?

Although Gonzales has recently recanted some of his previous views as being "too extreme", and although the Justice Department has recently revised some of their previous stances on torture, most notably that "only "organ failure, impairment of bodily function, or even death" constitute torture punishable by law", this does not exonerate Mr. Gonzales from scrutiny, given his previous endorsement of extremist policies that the Supreme Court and many other legal experts have seen as over-reaching and un-Constitutional. Indeed, as retired Rear Admiral John D. Hutson, former judge advocate general of the Navy said, this change of heart at Justice Department, "doesn't protect Gonzalez. It indicts him." A further indictment of Gonzales's legal legacy is the request, reported by the Washington Post, from the CIA and the Pentagon to find a "...more permanent approach for those it is unwilling to set free or turn over to U.S. or foreign courts." This plan to detain suspected terrorist for their lifetimes was attacked by Republican Senator Richard Luger, chairman of the Senate Foreign Relations Committee, who called it, "...a bad idea." He further went onto say, "...we ought to get over it and we ought to have a very careful, constitutional look at this."

If only Alberto Gonzales had felt similar reservations as Senator Luger, it is very probable that we would not have had the abuses at Abu Ghraib, or the "ghost detainee" program of secret detentions, as noted by Human Rights First. As more reports surface about the Bush administration's possible condoning of torture in the war on terror, it may be necessary to launch an investigation of what the President, the Vice-President and the Cabinet had or had not authorized in terms of the use of torture. The person to lead such an investigation would be the Attorney General. And it only makes sense to have an Attorney General who wouldn't have to recuse himself from such an investigation.

In answer to Mr. Limbaugh: this is not a political witch-hunt leading up to an impeachment of President Bush. This is about getting to the facts of how our soldiers ended up torturing prisoners, and whether this practice resulted from communication - or miscommunication - from the Executive Branch. This is about protecting America's reputation as the world's leader in defending human rights.

This is about our rights, our freedoms and how we conduct ourselves as human beings. To equate this with political gamesmanship is to spit on our Declaration of Independence, our Constitution and Bill of Rights, and it is to negate the sacrifices of so many of our young men and women, who gave their lives to protect these documents and what they stand for.

We need to fully examine the facts surrounding what Alberto Gonzales did as White House counsel. Our men and women fighting this war on terror, and the American citizenry, deserve no less.



7 Comments:
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