Ten Questions for Gonzales
President Bush is asking the United States Senate to confirm his nominee to be attorney general, Alberto Gonzales, without all the facts. Despite repeated requests from senators, the White House still refuses "to provide copies of his memos on the questioning of terror suspects." Instead, the Senate will be forced to rely on "press reports or leaks" for information about his role in drafting legal memorandum that provided legal justifications for torture. Gonzales had personally promised Sen. Patrick Leahy (D-Vt.) that he would "engage in an open exchange" regarding his testimony, but so far Gonzales hasn't bothered to answer Leahy's letters requesting the documents. In any event, there are serious questions – regarding his role in the prisoner abuse scandal and other issues – that need to be asked, and answered. We've drafted ten tough questions for Alberto Gonzales.
1. Are there any circumstances under which you believe the president of the United States could legally authorize torture?
Alberto Gonzales approved a now-infamous memo which contended the president "wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department." Despite the fact that the United States ratified the United Nations Convention Against Torture – which states "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture" – the memo stated the president had the authority "to approve almost any physical or psychological action during interrogation, up to and including torture." Once the memo was made public, Gonzales backtracked, saying the memo contained "unnecessary, over-broad discussions" about "abstract legal theories." He also said the policy was "under review, and may be replaced, if appropriate, with more concrete guidance addressing only those issues necessary for the legal analysis of actual practices." The Justice Department recently released a new memo redefining the U.S. stance on torture. The new policy, however, does not address the question of whether the president is entitled to disregard laws and treaties.
2. Has your position on the Geneva Conventions changed since evidence of widespread detainee abuse at U.S. prisons was uncovered? If not, which provisions of the Geneva Conventions do you still consider "quaint" or "obsolete"?
The Geneva Conventions of 1949, signed and ratified by the United States, are the primary instruments of humanitarian law used to protect those involved in international armed conflicts. A Jan. 25, 2002 memorandumissued by Alberto Gonzales claims the war on terrorism "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 memo also expresses concern, however, 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." The evidence of detainee abuse in Iraq, Afghanistan, and elsewhere have borne these concerns out.
3. In your view, what limits did the Sept. 14 joint resolution passed by Congress place on which countries the president could invade?
On Sept. 14, Congress passed a joint resolution authorizing President Bush to respond to the 9/11 terrorist attacks, but narrowing the scope of the authority to only countries specifically connected to the attacks. On Sept. 25, just 11 days later, the Justice Department sent a memo to Alberto Gonzales which "essentially argued that what Congress authorized didn't matter." The memo argued there were "no limits" on Bush's powers to respond to the attacks and, in the first known statement of Bush's pre-emptive doctrine, the memo "startlingly" argued Bush could deploy military force preemptively against any country he suspected of harboring terrorists "whether or not they can be linked to the specific terror incidents of Sept. 11." It also said his decisions were "for him alone and are unreviewable." Gonzales's response to the memo is unknown.
4. Do you still believe that the state of Texas does not have to abide by the Vienna Convention?
In 1997, Alberto Gonzales wrote a memo for then-Gov. Bush which said the state of Texas need not comply with the Vienna Convention. The Vienna Convention, ratified by the Senate in 1969, was "designed to ensure that foreign nationals accused of a crime are given access to legal counsel by a representative from their home country." Gonzales sent a letter to the U.S. State Department in which he argued that the treaty didn't apply to the State of Texas, as Texas was not a signatory to the Vienna Convention. Two days later, Texas executed Mexican citizen Irineo Tristan Montoya, despite Mexico's protestations that Texas had violated Tristan's rights under the Vienna Convention by failing to inform the Mexican consulate at the time of his arrest.
5. Do you still believe that the president can order the indefinite detention of U.S. citizens, without judicial scrutiny, now that the Supreme Court has rejected that position?
The Supreme Court ruled last June that citizens and non-citizens detained by the government – even those deemed "enemy combatants" by the Bush administration – have the right to challenge their detention in front of a neutral arbiter. The court sharply rejected President Bush's position that, as commander-in-chief during a time of war, he has the unilateral power to detain individuals indefinitely without due process of law. Justice Sandra Day O'Connor wrote: "A state of war is not a blank check for the president." The Supreme Court's decisions were a rejection of the Bush administration's legal justifications for the harsh treatment of prisoners. In an 8/1/02 memo written for Alberto Gonzales, the Bush administration argued that the president had the authority, pursuant to his commander-in-chief power, to authorize torture and other harsh interrogation tactics for the purpose of extracting information from detainees. Justice John Paul Stevens traced the rationale for his decision in the Guantanamo case all the way back to King John's promise in the Magna Carta of 1215 that, "no free man should be imprisoned ... save by the judgment of his peers or by the law of the land." The analysis "traced the limits on executive power through English common law, on through the Federalist Papers and down a long line of precedents forged in some of the darkest hours of the nation, including the Civil War and World War II."
6. The Department of Justice has issued a revised, more expansive definition of torture. But John Yoo, who helped write the repudiated memo, still defends the old definition. If you are confirmed as attorney general, would you consider Mr. Yoo for a position in your department?
An August 2002 memo, vetted by Gonzales, said 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." In anticipation of Gonzales's nomination hearing, the Justice Department issued a new memo, revising its definition of torture to include "mere physical suffering or lasting mental anguish." But former Justice Department official John Yoo still thinks the old definition was better, saying the new version "makes it harder to figure out how the torture statute applies to specific interrogation methods. It muddies the water. Our effort ... was to interpret the statute clearly."
7. Do you believe the March 2004 draft memo you requested – authorizing the CIA to transfer detainees to countries that may torture them – was in violation of international law?
At the request of Alberto Gonzales, the Justice Department drafted a top-secret memo that authorized the CIA to transfer detainees out of Iraq for interrogation. That practice, known as "extraordinary rendition," is a violation of the Geneva Conventions and is thus a "war crime" under U.S. federal law. The CIA used the draft memo, dated March 19, 2004, as legal support "for secretly transporting as many as a dozen detainees out of Iraq in the last six months." According to agency officials, the CIA transferred suspected terrorists "captured in one country into the hands of security services in other countries whose records of human rights abuse is well documented." Those detainees were also hidden from the International Committee of the Red Cross and other authorities.
8. Would you recuse yourself from all Enron-related matters?
For more than a decade, Alberto Gonzales was an attorney for Vinson & Elkins, the firm that represented Enron. When Gonzales ran for re-election to the Texas Supreme Court, he "received $6,500 in campaign contributions from the company." The Justice Department is currently prosecuting top Enron executives – including former CEO Ken Lay. John Ashcroft recused himself from the Enron investigation "because of contributions he received from the company's executives during his campaign for the Senate." Nevertheless, Gonzales - who had a far more extensive relationship with Enron than Ashcroft – continued to be involved in Enron-related investigations as White House counsel.
9. Would you recuse yourself from all Halliburton-related matters?
The Justice Department has launched three investigations of Halliburton: for allegedly overcharging the military $61 million for fuel, for allegedly bribing Nigerian officials to win a contract and for allegedly doing business with Iran through an off-shore subsidiary. Halliburton was a major client of Vinson & Elkins while Gonzales was a partner at the firm. In 1999, as a member of the Texas Supreme Court, Gonzales accepted a $3,000 contribution from Halliburton just before the court was to hear an appeal of a case where "a Halliburton employee had won a $2.6 million trial verdict" against the company. Gonzales did not recuse himself.
10. Were you aware of Bernard Kerik's long-standing ties to Interstate Industrial, a New Jersey-based firm allegedly run by organized crime? If so, did you inform President Bush before Mr. Kerik was nominated? If not, how was the media able to uncover the connection hours after the nomination was announced?
Alberto Gonzales personally "spent hours grilling" Bernard Kerik as part of the administration's weeks-long effort to vet the one-time nominee for Homeland Security secretary. After Kerik withdrew his name from consideration, it was discovered that he had maintained long-standing ties to an alleged mob-run construction company called Interstate Industrial. While heading both the Department of Corrections and the New York Police Department, Kerik received numerous unreported cash gifts from Interstate Industrial executive Lawrence Ray, who has since been indicted on federal charges for a stock swindle involving several prominent mob figures.