January 24, 2005

Alberto R. Gonzales, President Bush's nominee for Attorney General, has played a key role in providing legal justification for policies that led to torture and abuse of detainees in U.S. custody. In the confirmation hearings held by the U.S. Senate earlier this month, Human Rights Watch hoped Gonzales would seize the chance to reassure the world that he would in the future uphold and enforce the laws that prohibit torture and ill-treatment. Instead, in his answers to Senators' questions, he raised new doubts about whether he is committed to the rule of law, and whether he even understands the laws that govern the conduct of war and the treatment of prisoners.

As Counsel to the President, Mr. Gonzales helped lay the faulty legal foundation of the Bush Administration's detention and interrogation policies in Afghanistan, Guantanamo Bay, Iraq and secret locations abroad. Ignoring the advice of Secretary of State Colin Powell and the United States' top military leaders, he urged President Bush not to apply the Geneva Conventions to the armed conflict in Afghanistan. He also wrote or requested legal memoranda that untethered U.S. treatment of detainees from its traditional moorings, leaving U.S. soldiers and interrogators without clear limits on their conduct. The theories these memos advanced provided the basis for the approval of interrogation methods the United States has long condemned as torture, including binding prisoners in painful positions, threatening them with dogs, extended sleep deprivation, prolonged exposure to extreme heat and cold, and, reportedly, simulated drowning. Whether giving advice to the President or reviewing the opinions of government lawyers, Mr. Gonzales never said "no" to extreme legal theories when "no" was legally and morally required.

Human Rights Watch has never before opposed the nomination of a cabinet official in the United States. We do so today mindful of a President's prerogatives in putting forth candidates for executive posts. But more important is the U.S. Senate's role in ensuring that nominees are minimally fit to serve. The Attorney General must scrupulously enforce the law and lead a Justice Department that is committed to ensuring that no one - not even the President - is above the law. Sadly, Mr. Gonzales's statements to the Senate indicate a continuing willingness to bend the law in service of a desired policy outcome, rather than an unbending commitment to respecting the law.

In his hearing, Mr. Gonzales was asked about a memo that he requested from the Justice Department's Office of Legal Counsel, which redefined torture to exclude conduct that unquestionably constituted torture. That memo also made the radical claim that President, as commander in chief, was exempt from laws prohibiting torture.

The Bush administration has retreated from its absurdly narrow definition of torture. But when Senators asked Mr. Gonzales if he believes that the President could lawfully order a prisoner to be tortured, Mr. Gonzales repeatedly refused to say, simply, "no." Instead, he argued that the Congress could, theoretically, pass a law that is unconstitutional, which the President could, hypothetically, ignore. But the laws against torture, like the laws against murder or rape, are not hypothetical; they are real and unconditional. The United States should not have an Attorney General who refuses to say whether the President is bound to obey specific, existing laws that reflect its most fundamental values as a nation.

Mr. Gonzales’s written responses revealed another aspect of the Bush Administration's deliberate strategy to circumvent legal prohibitions against mistreatment of detainees. Administration lawyers have invented a geographic limitation to the United States' obligation not to engage in cruel, inhuman or degrading treatment under the Convention against Torture. Mr. Gonzales told the Senate that this obligation does not apply to non-Americans held outside of U.S. territory. While he notes that members of the military and military contractors may be bound by other laws that prohibit serious assaults, he failed to acknowledge the principal effect of refusing to honor this treaty obligation abroad: it leaves the CIA with a free hand to engage in the very cruel and inhumane treatment that the United States pledged to prevent when it ratified this human rights treaty. In effect, Mr. Gonzales said that no law would prohibit the CIA from engaging in the same degrading conduct revealed by the photographs from Abu Ghraib.

At his oversight hearing, Mr. Gonzales also demonstrated a lack of understanding of the most basic concepts of the Geneva Conventions. He repeatedly argued that had the Geneva Conventions been applied to al Qaeda members captured in Afghanistan, the United States would have had to give them all the privileges of prisoner of war status. In fact, the Geneva Conventions do not require that all captured belligerents be granted POW status -- but they do require humane treatment of all captives, whether soldiers, insurgents, or civilians. He also said more than once that had the Geneva Conventions been applied to al Qaeda members, they could not have been prosecuted for war crimes. This is an elementary misstatement of the law. The Third Geneva Convention confers immunity only for lawful acts of combat - the act of taking up arms - and only on POWs. The Geneva Conventions do not grant immunity for war crimes to anyone. Given that President Bush relied on Mr. Gonzales's legal advice in deciding not to apply the Geneva Conventions to al Qaeda, it is deeply troubling that Mr. Gonzales appears to have misunderstood such a fundamental principle of the laws of war.

In his written responses, Mr. Gonzales also demonstrated a lack of knowledge of the U.S. military's fundamental rules on the treatment of detainees, stating that the U.S. Army's interrogation manual (FM 34-52) only protects prisoners of war from mistreatment. In fact, the manual, like the Geneva Conventions, explicitly protects all detainees, whether POWs, insurgents or civilians.

Mr. Gonzales began his testimony by asserting that he shared the commitment of America's founding fathers to a government of laws, not of men. His position on torture cannot be squared with that principle. By stressing that the President's rejection of torture is simply a choice, not a legal obligation, he has endorsed the position that governments are bound not by law, but by presidential policies that can be made and unmade as presidents wish.

If widely adopted, such a view would grant license to the leaders of all nations to order the torture of anyone they deem to threaten their national security. It would provide U.S. adversaries with a justification for the torture of American soldiers and civilians. The assertion of such a radical view by the Attorney General of the United States would undermine President Bush's stated intention to promote liberty and law around the world. An administration that preaches moral clarity to others should not tolerate moral ambiguity in its top law enforcement official.

For over 25 years, Human Rights Watch, along with many others, has worked to stamp out torture around the world. That struggle has been made harder by the legal positions adopted by the Bush Administration, including Mr. Gonzales's refusal to state that a President could not lawfully order torture. Statements against torture in the abstract are welcome, but they are no substitute for the strong hand of the law in protecting human dignity and ensuring the human rights of all people.