A Legacy of Legitimizing Torture
The resignation of the torturer in chief was noted by his patron, the president, as an unfortunate day for American democracy. "It's sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud for political reasons," President Bush lamented on Monday.
What good name? After all, Bush picked Gonzales to be the nation's highest law enforcement official only after Gonzales had proved his mettle for the job as White House counsel. His legal advice to the president was that torture is a legitimate option, because Bush's self-defined "war on terror" wiped out all prior legal restraint and in particular "renders obsolete Geneva's strict limitations on questioning of enemy prisoners."
Gonzales' infamous memo to the president from Jan. 25, 2002, also rendered obsolete, among other constitutional safeguards, the division of powers that provides a congressional check on the executive branch. According to Gonzales' professional judgment, the president was no longer bound to observe the 1996 War Crimes Act, which allows criminal prosecution of Americans for violating the Geneva Conventions and for "outrages upon personal dignity." According to that law, both the president and his attorney general potentially would be subject to severe penalties, including death, for the systematic torture they authorized.
No wonder Bush needed to appoint Gonzales as attorney general, lest some enterprising Justice Department lawyer dare expose the criminality emanating from the White House. Not a fanciful concern, given that we have since learned that the previous attorney general, John Ashcroft, had serious reservations about breaking the laws protecting fundamental human rights. Indeed, the most clarifying moment of Gonzales' government service was his nighttime visit to Ashcroft's hospital bed, where the then-White House counsel failed to deceive an ailing Ashcroft into authorizing an extension of government surveillance. Ashcroft refused and was protected from further harassment only by the intervention of FBI Director Robert S. Mueller III. The problem presented by Ashcroft's display of legal integrity was eliminated when Bush gave his job to Gonzales.
While the media are once again buying the White House backroom spin that the president's error in the Gonzales scandal is one of misplaced loyalty to a friend who didn't perform up to expectations, the truth is that Bush promoted Gonzales because of his assaults on the Constitution and not in ignorance of that sorry record. As the president put it in "reluctantly" accepting the resignation of "a man of integrity, decency and principle": "As Attorney General and before that, as White House Counsel, Al Gonzales has played a role in shaping our policies in the war on terror ... The PATRIOT Act, the Military Commissions Act and other important laws bear his imprint."
Frighteningly accurate testimony: that the Gonzales legacy will live on long after his government tenure. One aspect of that dreadful legacy, not often remarked upon, is that Gonzales shaped Bush's selections of lifetime appointees to the judiciary that will preside for decades to come. As Bush observed: "As Attorney General, he played an important role in helping to confirm two fine jurists in Chief Justice Roberts and Justice Samuel Alito. He did an outstanding job as White House Counsel, identifying and recommending the best nominees to fill critically important federal court vacancies."
One of those critical vacancies was filled on Gonzales' recommendation by the appointment of then-Assistant Attorney General Jay S. Bybee as a judge on the U.S. Ninth Circuit Court of Appeals. Bybee distinguished himself in the eyes of Gonzales and the president by being the author of the 50-page "Bybee memo" of Aug. 1, 2002, which held that torturing al-Qaida captives "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogations" conducted under President Bush. But Bybee went further than merely sweeping aside the restraints of international law, concluding, "Finally, even if an interrogation method might violate Sect. 2340A [of the U.S. Torture Convention passed in 1994] necessity or self-defense could provide justification that would eliminate any criminal liability."
The Bybee memo protected Gonzales and Bush from being branded with the "torturer" label by arguing that torture "covers only extreme acts ... where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure." Oh? Maybe my opening sentence for this column was too harsh. Surely Gonzales, and the president who still adores him, intended all along to draw the line at organ failure.