A Record of Injustice

By Christy Harvey and Judd Legum and Jonathan Baskin, The Progress Report. Posted November 11, 2004.

An August 2002 Justice Department memo "was vetted by a larger number of officials, including...the White House counsel's office and Vice President Cheney's office." According to Newsweek, the memo "was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and [Cheney counsel] David Addington." The memo included the opinion that laws prohibiting torture do "not apply to the President's detention and interrogation of enemy combatants." Further, the memo puts forth the opinion that the pain caused by an interrogation must include "injury such as death, organ failure, or serious impairment of body functions – in order to constitute torture." The methods outlined in the memo "provoked concerns within the CIA about possible violation of the federal torture law [and] also raised concerns at the FBI, where some agents knew of the techniques being used" overseas on high-level al Qaeda officials. [8/1/02 memo [PDF]; WP, 6/27/04; Newsweek, 6/21/04; NYT, 6/27/04]

A 1/25/02 memo written by White House Counsel Alberto Gonzales said "the war against terrorism is a new kind of war" and "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." The memo pushes to make al Qaeda and Taliban detainees exempt from the Geneva Conventions' provisions on the proper, legal treatment of prisoners. The administration has been adamant that prisoners at Guantanamo are not protected by the Geneva Conventions. [1/25/02 memo [PDF]; Newsweek, 5/24/04]

The 1/25/02 memo shows Alberto Gonzales was aware of the risk that ignoring the Geneva Conventions could create for the military. One concern expressed is that failing to apply the Geneva Conventions "could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries," which is what happened at Abu Ghraib. Secretary of State Colin Powell strongly warned against taking this decision, as did lawyers from the Judge Advocate General's Corps, or JAG. This week, a federal judge ruled that "President Bush had both overstepped his constitutional bounds and improperly brushed aside the Geneva Conventions" when he established military tribunals in Guantanamo Bay, Cuba, to try detainees as war criminals. [1/25/02 memo [PDF]; Bloomberg, 6/14/04; New York Times, 11/9/04]

As chief legal counsel for then Gov. Bush in Texas, Gonzales was responsible for writing a memo on the facts of each death penalty case – Bush decided whether a defendant should live or die based on the memos. An examination of the Gonzales memoranda by the Atlantic Monthly concluded, "Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence." His memos caused Bush frequently to approve executions based on "only the most cursory briefings on the issues in dispute." Rather than informing the governor of the conflicting circumstances in a case, "The memoranda seem attuned to a radically different posture, assumed by Bush from the earliest days of his administration – one in which he sought to minimize his sense of legal and moral responsibility for executions." [Atlantic Monthly, July/August, 2003]

In his briefing on death-row defendant Terry Washington – a mentally retarded 33-year-old man with the communication skills of a 7-year-old – Gonzales devoted nearly a third of his 3-page report to the gruesome details of the crime, but referred "only fleetingly to the central issue in Washington's clemency appeal – his limited mental capacity, which was never disputed by the State of Texas – and present[ed] it as part of a discussion of 'conflicting information' about the condemned man's childhood." In addition, Gonzales "failed to mention that Washington's mental limitations, and the fact that he and his ten siblings were regularly beaten with whips, water hoses, extension cords, wire hangers, and fan belts, were never made known to the jury, although both the district attorney and Washington's trial lawyer knew of this potentially mitigating evidence." Nor did he mention that Washington's lawyer had "failed to enlist a mental-health expert" to testify on Washington's behalf, even though "ineffective counsel and mental retardation were in fact the central issues raised in the thirty-page clemency petition" it was Gonzales's job to review. This all came at a time when "demand was growing nationwide to ban executions of the retarded." [Atlantic Monthly, July/August, 2003]

As Texas Supreme Court Justice, in the weeks between hearing oral arguments and making a decision in Henson v. Texas Farm Bureau Mutual Insurance, Justice Alberto Gonzales collected a $2,000 contribution premium from the Texas Farm Bureau (which runs the defendant insurance company in this case). In another case, Gonzales pocketed a $2,500 contribution from a law firm defending the Royal Insurance company just before hearing oral arguments in Embrey v. Royal Insurance. [Texas for Public Justice]

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