Sheridan: Con-Law

DAHLIA LITHWICK ON BUSH-GONZALES-TORTURE

Dahlia Lithwick, of Slate, an attorney with an unusually clear eye and rapier for a pen, has this to say on Pres. Bush's "Torture is okay if it's us doing the torturing" address today:

TORTURE & A-G NOMINEE ALBERTO GONZALES

Nat Henthoff of the the Village Voice has a finely tuned sense of right and wrong when it comes to government conduct and government officials charged with carrying out important policy, such as our policy against torture and the civilized world's policy against torture, which should be the same.

Apparently it isn't, however.

It seems that we speak out of both sides of out mouth while keeping our hands over our eyes when it comes to torture. 

When we don't do it ourself, we'll hand the prisoner over to someone who will.

The excuse is that the prisoner is believed to have the information we want, and someone is going to have to wring it out of him.  National security, in other words.

Many sins are committed in the name of laudable goals.

Alberto Gonzales is Pres. Bush's chief White House counsel and A-G nominee, with a seat on the Court being a reasonably speculative possibility. 

See Henthoff's review of the situation here.

***

Update 1/30/05; not clear sailing.  10:8 vote on party lines in the Senate Judiciary Committee over Gonzales's perceived evasions or failures of recollection on methods of questioning prisoners; harsh methods.

TORTURE: A-G ALBERTO GONZALES

The Minneapolis Star newspaper has an editorial (requires you to register to enter) calling on the Senate not to confirm Alberto Gonzales as the next Attorney-General of the United States.  But since on retrying the link I've found it blocked by a registration requirement (that wasn't there when first tried), I've found another report, here, from ABC that succinctly describes the hearing before the Senate Judiciary hearing that doesn't require a registration.  It suggests good reason for rejecting Mr. Gonzales despite the lovely story that comes with him. The New York Times figures it's a lost cause opposing Gonzales; it's position is noted far below.  And at bottom is the newly arrived Boston Globe editorial, nailing the objection to confirmation in a paragraph.  The Yale Daily News provides an account of the law school dean, Harold Hongju Koh, testifying at the Gonzales confirmation hearing, critically of Gonzales, here.

Dean Koh's interesting comment, attributed to a law professor of his, is that "it's never a mistake to hold the United States up to its own standards."  I like that.

Alberto Gonzales comes with a lovely up-from-humble-beginnings story.

On the subject of lovely stories, you've got to be careful what you buy.  It's like the used car salesman who tells you the car you're looking at was owned by a little old lady who only drove it to church on Sunday.  When you buy that car, you've bought the story as well as a piece of iron, which is how car dealers sometimes refer to their merchandise, but only in private, as in the exhortation to the sales force, "Okay, now get out there and sell some iron."   Unfortunately, it's the car you have to drive for the next several years.  The car doesn't know about the story.

Alberto Gonzales favors torture.

He's soft on torture.

He's responsible for advising his client that it was okay to use torture.

He will not disavow the use of torture.

Ask him if he favors torture, however, and he says, "Of course not."

We're all opposed torture. 

Torture is another word for "bad," and "unacceptable." 

Of course, Gonzales is opposed to torture. 

He just will not for the life of him tell you what he's not opposed to and how much pain you may inflict on a prisoner before he will call it torture.

When other people inflict any amount of pain or degradation on our prisoners, that's torture.  But when we do it to them, it's in the national interest and okay.

This is not okay.

We cannot have this. 

We cannot have people who think like this running the country.

Gonzales thinks like this.

Here's the way it should work:

Sen. Lindsay Graham, a Republican, of South Carolina, a man who might be expected to be sympathetic to the Bush Administration under normal circumstances, of which these times are not, at the Senate confirmation hearing yesterday, stated that he was a Judge Advocate General in the Army Reserve.  Soldiers, he pointed out to the A-G designate, Mr. Gonzales, are taught that it is a crime to abuse a prisoner.  Soldiers are told that they can and will be prosecuted and go to prison for abusing, torturing, and killing prisoners.  There are trials underway as we speak on the Abu Ghraib disgrace.

Sen. Graham said that every wing commander's worst nightmare is for a pilot of his to come down in hostile territory and suffer capture and abuse. 

Sen. John McCain, the admiral's son who was captured by the North Vietnamese after he'd bombed Hanoi, suffered greatly, in the Hanoi Hilton, at the hands of an enemy who didn't play by the rules of war that we think are just.  McCain was one of many.  In WWII the Japanese made themselves infamous for their mistreatment of prisoners in the Philippines (the atrocities of Santo Tomas), China (see The Rape of Nanking), and elsewhere.  See The Bridge on the River Kwai, 1958.

During our aerial attack on Slobodan Milosevich's Serbian territory, one of our pilots, Lt. Mark O'Grady, was shot down by a Surface-to-Air Missile (SAM).  A major rescue effort was mounted, successfully, to rescue him, to great relief and satisfaction.  When the enemy you've been demonizing, with reason, whose power plants, bridges, and party headquarters you've been bombing catches you, you're in trouble.

We do not want our troops abused in any way. 

We do not want our sons, daughters, nephews, and nieces, isolated, tortured, displayed, interrogated, paraded, malnourished, and, after death, dragged naked through the streets the way Achilles dragged Hector around Troy.  See Mogadishu, Somalia. Read and see Blackhawk Down.

The quid pro quo that we must be willing to pay for our demand for humane treatment for ourselves is that we must be willing to offer humane treatment first, unconditionally, and in all circumstances.  Professor Alan Dershowitz of Harvard Law takes a different position.  He said on Scarborough Country two nights ago that to take this position but then to wink at it in practice is wrong.  If we need the information held by a prisoner we'll extract it from him, principles, laws, or not. 

Dershowitz says it would be far, far better to be less hypocritical and define just which kinds of torture are morally acceptable, the kind of stuff we're willing to wink at.  Defining acceptable torture is a dangerous exercise.  Better to say "Thou shalt not..."  Dershowitz wants to define the exceptions.  He has precedent.  To the Commandment, "Thou shalt not kill" we have exceptions to justify and excuse.

It was a mistake to mistreat the prisoners at Abu Ghraib.

It is a bigger mistake to mistreat by harsh questioning, isolation, and downright abuse, the prisoners at Guantanamo.

As far as I am aware, there are only two choices when dealing with people who are intolerable to a free society.  In time of war, the choice is to kill the enemy on the battlefield, or, as we did during World War Two, in aerial bombardment, such as the bombing of Germany and Japan, to destroy the enemy's capacity to make war and to force capitulation, sooner rather than later. 

But when an enemy becomes your prisoner, you must treat him humanely, for he is in your care, and we expect you to take care of him the way you would wish to be treated were you in his care.  Otherwise you are fair game for the same pain you inflict on your enemy.  We know from experience that today's enemy is tomorrow's friend, and vice versa.  Germany, Japan, and the former Soviet Union, or as we called it, Stalinist Russia, are the leading examples.  We don't even count Italy.  Britain, from whom we rebelled at the cost of war, is our most steadfast ally, and we theirs.  France?  Don't even bring it up.

We expect combatants to kill each other during fighting.  That's what they're there for.  That's the WWI and WWII model.  The Geneva Conventions, convened in 1924 to outlaw the poison gas of WWI, codified illegal weapons and the treatment of Prisoners of War (POWs).  You know how upset we become when our soldiers don't come home and are unaccounted for as Missing in Action, the so-called MIAs.  For decades after the Vietnam War, MIA groups have agitated for better efforts to identify and recover missing soldiers.  The Andersonville Civil War prison for captured Northern soldiers, which turned into a death camp by starvation, disease, and intolerable conditions, produced a literature of its own, searing itself into the deep memory of those exposed to it.

Today's soldiers wear digital cameras on their helmets to record their in-action experiences.  Abu Ghraib was ignored until the photos turned up.

Gonzales had no trouble condemning Abu Ghraib.  Those abuses were sickening, the work of morally bankrupt people "having fun."  Our morally bankrupt people.  Having fun.  That cut the moral high ground out from under us, certainly in Muslim eyes, covering about a third of the world.  Abu Ghraib we didn't need.

But Guantanamo is different, says Gonzales.  There we had prisoners who had information.  These we can squeeze, but not torture, bend but not break.

Hmmm.  This is where the problem lies.

We can always imagine, law class style, the hypothetical situation where we've caught Osama Ben Laden's planning coordinator who refuses to speak about where and when the next 9-11 is going to occur.  What do you do about him?  Are you justified in flaying him to save the next 3,000.  In war you have to break a few eggs.  Let's not put too fine a moral point on it.

So we set up Guantanamo to insulate against judicial review, the power of a court to nullify an act.  If the prisoners are held where a lawyer and a court cannot reach them, why, then the military and the intelligence agencies can each take their crack at them, reducing them to mincemeat if necessary, to extract their intelligence.

When it turns out that a good number of these prisoners, flown in from Afghanistan, were goat herders, armed goat herders, because all men in Afghanistan carry rifles, just as our cowboys wore guns when they went into Dodge City, and sympathized with the Taliban, because who else are the armed goat-herders of Afghanistan going to sympathize with, the New York Times liberals, as my conservative friends like to call people like me? Then we're in trouble.  We've been torturing goat-herders in order to find Mr. Al Qaeda.

This doesn't pass the New Yawk stink test.  It stinks.  If you can't sell a New Yorker on it, don't even try  New Yorkers make the Show Me I'm From Missouri crowd look like pikers.  "Yeah, right," say the New Yorkers.  "Peddle it down at the Fulton Fish Market."  Some things they don't believe right off the bat, and others take a moment's thought.

A wise man knows what not to believe.  I said that. Years ago. It's my definition of wisdom.

Here's how Alberto Gonzales works.  His parents are migrant farm workers from Mexico who enter the U.S.  He goes to Rice University and on to Harvard Law School.  Gets a job in a big Texas law firm.  Meets the Bushes and hitches his star to George W. Bush, which is a great move as W becomes Governor of Texas.  So far, so good.  There's only one thing Alberto needs to do.  Support George W.  Terrific.  So George W makes Alberto his top legal guy.  He reviews all of the death penalty appeals for clemency.

The theory on clemency is that after the legal system gets done condemning you, you have one last chance to save your life, in case the legal system had the deck stacked against you, which of course is usual, especially in Texas, especially in death penalty cases where there's a dead body, or bodies, that you are responsible for.  This past week in Texas a woman, Andrea Yates, who drowned her five children in a fit of post-partum depression had her conviction reversed by an appeals court in Texas because the prosecution psychiatrist, called Dr. Death by defense attorneys, allegedly testified incorrectly that she may have got the idea from a TV law program that he was aware of in which something like that had happened.  This showed she knew what she was doing, and not insane. 

Only there was no such program.  The testimony was a figment of the psychiatrist's imagination.  He almost killed her from a mental aberration.  It had been a death penalty case in which the jury opted for life.  His was excusable, no doubt.  Hers wasn't.  The Texas appeals court caught the mistake in time to prevent yet another miscarriage of justice.  We are famous for our miscarriages of justice.  See the Michigan death penalty cases where twelve our of thirteen turned out to be wrong.  Scott Turow has written the balanced book on it.  Governor George Ryan commuted all of the death sentences in the state.  Why kill people if you have no confidence that what you are doing is right?

In Texas they haven't seemed, until now, bothered by such quibbles.

When Alberto was responsible for reviewing clemency petitions he'd summarize the briefs.  But he'd leave out the good stuff.  Why give the fellow he was working for, George W, food for bad dreams?  W doesn't want bad dreams.  He wants to do what most Texans, his supporters, want him to do, which is to execute people convicted of committing bad crimes.  The morality play of Texas life demands no less.  If you can't execute the person convicted of a bad crime, the death, or deaths, go unavenged.  No justice.  No closure.

Closure is the most over-rated term in newspaperese.  It does not describe what happens to the victim's family after the switch is pulled or the pill dropped.  They never achieve closure. Closure in the psychological sense of survivors returning to the state they were in prior to the horrible crime that led to the death penalty in the first place.  Or to a healed state afterwards that lets them function as though they haven't been badly wounded themselves by the crime.

Closure is a new term.  Newspapers never mentioned 'closure' before, say, the 1970s, when psychobabble became the rage.  This was before Freud was unthroned, and psychiatrists and journalists had free reign to speculate and make up jargon as though it stood for something real, at will.  Reporters were encouraged by editors to do this.  When a big crowd assembled at an anti-war rally, the editor wanted to know how many people were in that crowd.  How was the reporter supposed to know?  He'd call the police station.  Do you think the desk sergeant knew?  They'd make something up. 

Or if there was a big fire.  The editor always seems to want to know how much money was lost in the fire, the value of the building, or buildings.  Do you think the reporter knows how to place a value on a building or a business in time for tomorrow's edition?  Other people spend their lives trying to place values on businesses.  It takes a lot of work.  Over a long time. 

Yet the story somehow doesn't seem complete unless it can say, firemen estimated the value of the loss to be $750,000.  Which fireman knows this?  Firemen spend their time practicing on raising ladders, not appraising the real estate and business market, at least not when they're on duty.

In one notorious case the defense attorney was said to have slept through the trial in a death penalty case.  He was court appointed, no doubt.  The train runs fast through Texas.  The Texas courts didn't find this problematic.  So the attorney slept.  So what?  What's your problem?  Texans are worse than New Yorkers.   They don't believe anything that runs counter to their beliefs.  This guy needed killin.'

When Gonzales wrote the summary of the clemency petition, did it mention that the attorney slept through the trial?  No.

"Why not?"  Gonzales was asked during his hearing the other day.  Some things we left up to other departments, he replied.  If the courts thought it was okay to confirm the death penalty, why should we second-guess them?  They're courts, after all.  We're just the governor's office.  If the courts don't see anything wrong with it, why bother us?

Clemency is that added bit of consideration that allows for the possibility of saying, "You know, perhaps the courts didn't do such a hot job on this one."  Or even if they did, maybe we shouldn't be too quick to pull the trigger on this.  Something just doesn't sit right.  Let's make an exception for this one.

With Gonzales advising George W., that never had a chance to happen.  The clemency review seems to have been a charade when it hadn't included your main point.  And the governor can tell the objectors, "Hey, the case got the full review; even my clemency secretary, Mr. Gonzales here, this up from the fields son of Mexican immigrants said it was okay to inject the needle, so that's what we did, with the backing of the whole august court system.  As though the American-dream story that follows Mr. Gonzales insulates him from responsibility for his actions.

So George W appoints him to be a judge in Texas, a boy-wonder judge.

But then W runs for president and wins.  Brings Alberto to the White House.  Makes him head of the White House legal staff.  Lawyer to the president who is president of all of the people, even those who didn't support him, defender of the Nation's Values, the best of our spirit and tradition, not the worst.

9-11 hits.  The nation is in a heightened state of apprehension.  More than a little paranoid.  Paranoia is in irrational reaction to fear.  It is worst case reasoning without good reason to fear that the worst case is actually likely to occur.  By definition, paranoia is irrational.

The East Coast was more irrational than the West Coast after 9-11.  The West Coast was more irrational than the East Coast after Pearl Harbor, the only similar experience of a devastating attack on American soil within living memory.

We became  a little crazy.  It was a wonder that we remained as sane as we were.

I'll bet things were a little crazy in the White House, too.

We went to war.  Afghanistan.  Iraq.  We took prisoners.  Put them in Guantanamo, our base in Cuba, far from prying eyes.

Can we torture them?

Gonzales, clearly able to read his boss's attitude, checked the law.  He checked with the Justice Department's Office of Legal Counsel (OLC), which is supposed to be the brains behind the president's legal office, as far as I can tell.  The head of the unit, an assistant attorney-general, Jay Bybee, since made a federal judge, writes a memorandum of so-called law, since repudiated, just days before the Gonzales confirmation hearing, saying that it's okay to squeeze the prisoners at Guantanamo, since they have 'intelligence' data, presumably, coming from Afghanistan and all, provided you don't kill them or leave lasting damage.  Torture in other words.  It's okay. Quite justified.  Ignore the Geneva Conventions.  They don't apply.  Americans in the Justice Department, without checking with the Army, are telling the Army and the CIA that torture is okay.

Gonzales endorsed it and advised his client, the President of  All of the United States, the defender of our better spirit and good traditions, that it was okay to torture prisoners to find out what they wanted to tell us under torture, which may or may not be the gospel truth. 

One thing about humans is that since infancy they become pretty good at reading what other humans want or take for granted, particularly those having authority over them, such as parents, sergeants, kings, masters, bosses, judges, pimps, presidents, and the like.

"Will no one rid me of this damned priest?"  cried the king in frustration, and the priest was promptly stabbed to death at the altar by attentive supporters of the king.

That would be Henry VIII and Thomas More.  See A Man For All Seasons (1966) starring Paul Schofield as More and Robert Shaw as the king.  Featuring Leo McKern, who later became Rumpole of the Bailey. 

The priest had told the king he could not legally do something he wanted very badly to do, like divorce his wife for one who would produce a son, essential for preserving the dynasty. National security, old style. 

Mr. Gonzales was surely not destined to tell his president he may not commit torture.

I know Thomas More, I worked with Thomas More, I was a friend of Thomas More, and you Mr. Gonzales, are no Thomas More. 

Gonzales will tell his boss, his president, his client, as he sees it, exactly what he wants to hear, this time and every time. Which is exactly why he cannot be an effective attorney general of the United States.  Bush owns him.  Gonzales has no existence independent of Bush.  How can Gonzales, the weakest man in the world, possibly say no to the most powerful, without destroying himself in the process?  Gonzales probably doesn't realize it, but becoming A-G is his ticket to perdition. 

Looking at it from another perspective, would Bush appoint as his, make that our, attorney-general, a man who can stand up to him?  Which man is that?

This is why Gonzales should never be confirmed as Attorney-General of All of the United States. 

Because he doesn't have a clue as to what it means to be an attorney, a person of judgment, a man of independent judgment.  No resignation on principle for such a man.  For the violation of which principle would he resign?  Torture?  No?  Perhaps some other, bigger principle. I don't know what it could be.

But wait, "National Security, National Security," don't forget that, you say.

What about National Security?  The Nazis could do anything they wanted in the name of national security.  So could Stalin.  And Tojo.  If we want to be like them, maybe we should start all over and maybe next time we'll get it right.  Or we could try to get it right this time

We make our way in the world not only by our hard power, as has been pointed out by the dean of the JFK School of Government, but by what he calls "soft power." 

Soft power is the influence we have in the world produced by not only our technological accomplishments, which anyone, anywhere, can improve on, and make a buck, but by our spirit and better tradition, the one embodied in our Constitution as it stands at present, not the slave-constitution we had before the Civil War that changed it so dramatically.  This is the one we try to export a bayonet point to places like Afghanistan and Iraq.  Only we don't see many bayonets these days.  M-16s are more like it.

When we act as though torture were acceptable in the highest offices in the land, we not only lose the moral high ground that Senator Graham advocates is essential, but we lose our soft power as well. 

Why should anyone respect, trust, or admire us once we prove ourselves to be no better, when push comes to shove, than they are? 

Guantanamo will take us a long time to live down.

Yet we give medals to those who failed us, and promote to the federal judiciary, and the Attorney-Generalship, those who misled us from the moral high-ground, the ones who cost us our soft power.

Those are what make national security worth having.

I know that every president wants and deserves an attorney-general on whom he can count to protect his back.  That's why Jack appointed his little brother, Bobby.  It's why Nixon appointed John Mitchell, who was sent to jail in Watergate for his inability to distinguish law from politics.

This is Gonzales's problem.  He does not seem able to distinguish law from politics.  He can't tell his boss, "You can't do that.  You'll be an international war criminal if you do that.  If the Justice Department doesn't get you first.  Don't even think about doing that even if you think you have the right in the name of national security.  When the nation sobers up and sees what you did, they won't thank you for it.  They'll realize that you were morally bankrupt.  You don't need to do this."

Not that Bush is apt to listen.  Why listen to someone you made and can break in an instant?  Replace him with another yes-man.  How hard can that be in Washington?

Can you imagine Gonzales telling this to W?

This is why I have a problem seeing Gonzales as Attorney-General.  Gonzales is going to set the moral tone for law enforcement across the land as head of the Justice Department?  What moral tone is that?

They say he's going to be confirmed.

I hope he's learned something from the discussion over his confirmation.

The New York Times, Jan. 5, 2005, incidentally, doesn't call for the non-confirmation of Gonzales.  The Times simply calls on him, after he's confirmed, "to explain how he will use his new job to clean up the mess he helped create."

I hope Gonzales does a good job.

I hope he has a good lawyer.

***

And this just in:  The Boston Globe, owned by the New York Times, has come out with the following editorial, which I sure hope they regard as fair use here:

 

	THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

Gonzales is unfit to be AG January 9, 2005 THE SENATE Judiciary committee held hearings Thursday to determine whether Alberto Gonzales is fit to be US attorney general. Gonzales, legal counsel to the president for the past four years, has done more than any other person to set in place policies that have institutionalized the use of torture in prisons run by the US military. Gonzales has condoned a relaxation of the legal definition of the word torture so that such torments as half drowning a man, setting needles under his fingernails, or locking him on a concrete floor in a fetal position for 24 hours or longer are no longer considered to be torture in a legal context. He has also counseled the president that the protections provided to political prisoners under the Geneva Conventions are quaint and do not apply to our treatment of prisoners taken from Afghanistan or Iraq because these people are terrorists and not soldiers of another government. Whether or not Gonzales now protests that he is against the use of torture, this man's record clearly shows that he is professionally and morally unfit to be the highest law enforcement officer in the United States. JAKE STERLING   Concord

Copyright:  2005 The New York Times Company