Thursday, January 06, 2005

ballot boxUndiplomatic ImmunityDid Al Gonzales say the president can authorize torture?By Chris SuellentropPosted Thursday, Jan. 6, 2005, at 7:51 PM PT
Remember what Dick Cheney said to Sen. Patrick Leahy this past June on the Senate floor? Think of Alberto Gonzales' testimony Thursday before the Senate Judiciary Committee, where Leahy is the ranking Democrat, as the Bush administration's logical follow-up: "And your mother."
By late afternoon, Leahy had become so frustrated with Gonzales' refusal to give clear answers to questions from him and other Democrats that he held aloft a bulky file that he said was filled with unanswered letters and queries addressed to Gonzales, President Bush's nominee for attorney general. "If he's confirmed, I'm sure he'll feel that he never has any duty to answer them," Leahy said. Leahy's file may have been bursting with questions, but for most of Thursday's nearly nine-hour hearing the committee's Democrats wanted an answer to just one question: Does Gonzales think the president has the power to authorize torture by immunizing American personnel from prosecution for it?
During the hearing, Leahy called this idea, which comes from the August 2002 document dubbed the "Bybee memo," "the commander-in-chief override." And by hearing's end it was clear that Gonzales believed in it. (Otherwise, why not simply answer, "No"?) Early in the day, Gonzales professed the requisite faith that America was "a nation of laws and not of men," but his opinion of the president's ability—however limited—to authorize individuals to engage in criminal acts suggests the opposite. This is a government of good men, Gonzales implicitly assured the senators, so there's no need to worry about legal hypotheticals like whether torture is always verboten. Don't worry, because we don't do it. It's a strange argument from a conservative: We're the government. Trust us.
Committee chairman Sen. Arlen Specter kicks off the questioning with a softball. "Do you approve of torture?" he asks, and Gonzales assures him, "Absolutely not." In fact, Abu Ghraib "sickened" him, Gonzales says, and if anything illegal went on at Guantanamo, well, he condemns that, too. But that's the crux of the entire debate: When it comes to torture, what's legal and what's illegal?
Specter realizes this and tells Gonzales, "As chairman, I think further amplification is necessary." But he's sure the rest of the committee will handle that, and they do. Leahy asks Gonzales if he agrees with the definition of torture—"For an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death"—devised by an August 2002 memo that was addressed to him. Gonzales says he doesn't remember. Leahy asks if he agrees today. No, Gonzales says.
Then comes the question of the day: "Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?" Leahy asks. That's "a hypothetical that's never going to occur," Gonzales says, because we don't torture people. He continues, "This president has said we're not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn." Translation: Yes, I think the president has the legal authority to immunize acts of torture, but he doesn't want to, so I'm not going to bother with defending the idea.
Pressed for an answer, Gonzales concedes, "I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional," and therefore the president may ignore it. That's a general statement of principle, Leahy says, but I'm asking a specific question. Can the president immunize torture? Gonzales retreats to the that's-hypothetical-and-it's-not-gonna-happen defense. OK, Leahy says. What about leaders of other countries? Can they immunize torture? I'm not familiar with their laws, Gonzales replies.
Gonzales declares himself agnostic on an astonishing array of issues, including whether torture is a useful interrogation tactic. Sen. Herb Kohl of Wisconsin notes that Ashcroft has said torture doesn't work. What does Gonzales think? "Sir, I don't have a way of reaching a conclusion on that. All I know is that the president has said we're not going to torture under any circumstances."
Sen. Lindsay Graham is the lone Republican to blast Gonzales. His boyish face comes paired with a kindergartner's hyperactivity, as he impatiently rocks his chair while waiting for his turn. During Gonzales' answers to others' questioning, Graham sometimes wears a look of confusion mingled with disgust. "I think we've dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law," Graham, a reserve Air Force JAG officer, says. He adds later, "And I think you weaken yourself as a nation when you try to play cute and become more like your enemy instead of like who you want to be."
Gonzales senses that Graham has made a mistake and seizes on it. "We are nothing like our enemy, Senator," he protests. They behead people, like Danny Pearl and Nick Berg. Graham notes that this is a pretty low moral standard for America to aspire to. I agree that we're nothing like the enemy, he says. "But we're not like who we want to be and who we have been." (During Graham's second round of questioning, Gonzales tells him that government lawyers did the very best they could when they wrote the memo. "Well that's where you and I disagree," Graham retorts. "I think they did a lousy job.")
Later, it's Sen. Dick Durbin's turn to try to get Gonzales to elucidate his views on the separation of powers. Can the president immunize people from prosecution for torture? Gonzales restates that it's theoretically possible for Congress to pass an unconstitutional law that the president can justifiably ignore. "Has the president ever invoked that authority?" Durbin asks. No, Gonzales says. When Leahy's turn comes around again, the ranking Democrat complains, "You never answered my question." But Gonzales has answered. Leahy and the Democrats just don't like his answer.
Sen. John Cornyn of Texas, a Republican, comes to Gonzales' defense. President Clinton's solicitor general, Walter Dellinger, wrote in 1994 that the president can refuse to execute laws he considers unconstitutional, Cornyn notes. Sen. Russ Feingold dismisses this during his turn to speak. There's a difference between not enforcing a statute and authorizing people to break the law, he says. Look, Gonzales reiterates, that 2002 memo is no longer administration policy. And on top of that, we don't torture people. But, Feingold asks, does President Bush have the power to authorize violations of criminal law? Gonzales makes some noise about "a presumption of constitutionality" and his oath as attorney general to defend congressional statutes, then gives his real answer: I'd take it very seriously if I ever advised the president to do such a thing. "So the president's above the law?" Feingold asks. No, Gonzales says, but he can choose not to enforce unconstitutional laws. That's not what I'm asking, Feingold complains. We don't torture people, Gonzales says. Feingold gives up and pleads, Will you just let us know instead of waiting two years next time?
Durbin tries to get Gonzales to clarify. Can U.S. personnel, under any circumstances, engage in torture? Gonzales still can't muster a definitive "no." "I don't believe so, but I'd want to get back to you on that," he says. "There are a number of laws that prohibit that."
By day's end, Leahy's frustration drives him to a hilarious tangential inquiry as to how Gonzales vetted Bernie Kerik, President Bush's withdrawn nominee for secretary of homeland security. (Gonzales protests that Kerik wasn't nominated. "It was an announcement of an intent to nominate," he says.) Leahy wants to know whether Gonzales knew about Kerik's so-called "9/11 apartment," or his extramarital affair, or best of all, whether the nanny that he said he didn't pay Social Security taxes for even existed. No one knows her name or what country she comes from, Leahy says. "Do you know whether there ever was a nanny?" Gonzales answers by saying that Kerik is no longer under consideration. "Maybe there was such a nanny," Leahy muses. "I don't know."
Finally, Harold Hongju Koh, a Yale professor of international law (and dean of the Yale Law School), solves the riddle—about the "commander-in-chief override" not the mysterious nanny—by proposing a simple question for Gonzales. He tells the Judiciary Committee, "A simple question you could have asked today was, 'Is the anti-torture statute constitutional?" If Gonzales answers yes, then he does not believe the president can override the statute. Mystery solved. Only one problem with this professorial inquiry: By the time Koh testified, Gonzales was already gone.Chris Suellentrop is Slate's deputy Washington bureau chief. You can e-mail him at suellentrop@slate.com.Article URL: http://slate.msn.com/id/2111962/


today's papersTorture TimesBy Eric UmanskyPosted Thursday, Jan. 6, 2005, at 12:28 AM PT
The Washington Post leads with a lawsuit filed by an Aussie being held at Gitmo whose lawyers say the U.S. once rendered him to Egypt, where he was electrocuted, beaten, and nearly drowned. The lawyers are trying to stop what they say are plans to send him to Egypt again. Three Gitmo detainees who have since been released said that, when the man first came back, he was missing his fingernails and medics didn't treat him although he was bleeding from his nose, mouth, and ears. The New York Times leads with ten former WorldCom directors agreeing to pay $18 million of their own money to settle a class-action lawsuit brought by investors after the company imploded. The Times calls the personal payments a "remarkable concession." USA Today leads with, and others front, two studies concluding that inflammation can be as big a contributor to heart disease as high cholesterol. The Los Angeles Times leads with Gov. Schwarzenegger's state of the state address in which he called for toppling some sacred cows, including changing the redistricting process. Another Times piece says the guv is about to propose 2 billion dollars in education cuts.
The NYT devotes a few hundred words inside to the detainee's lawsuit, but it fronts the latest torture-related documents nabbed and now released by the ACLU. They show FBI officials complaining about "coercive tactics" back in late 2002. Agents cited what they saw as 26 instances of abuse but were later told 17 of them involved Pentagon-approved techniques. As for the non-approved actions, what some neophytes might call torture, a "military lawyer" told the LAT inside, "We don't define most of these as abuse. We define most as misconduct."
Though this morning's papers don't dwell on it, the ACLU itself says the newly released documents show the FBI's investigation was "sharply scaled back." The organization also points out that records from the FBI's investigation are still being withheld and those that were released have more blank spots than Mad Libs, rendering many of them unintelligible. (TP recently wrote about how the administration's response to the ACLU, and other FOIA requestors, is indicative of the administration's retreat from transparency.)
The NYT mentions and the Post stuffs a new report in the New England Journal of Medicine that Army doctors helped interrogators carry out abusive interrogations. The WP has previously reported that the doctors had Gitmo gave interrogators detainees' medical files. But according to this latest report, which is based on interviews with doctors as well as those ACLU papers, the docs did the same in Iraq. (In other words, though the papers don't seem to mention it, this seems to be another instance of Gitmo techniques "migrating" to Iraq, where the Geneva Conventions were supposed to apply.)
Everybody mentions the military's announcement that it's launching an investigation into the abuse allegations detailed by the FBI, which the ACLU docs originally revealed last month. Question: Was the military given copies of the FBI memos back when they were written, and if so, why did it wait to investigate? Also, doesn't the FBI itself have the authority to investigate if any civilians might have been involved?
The Wall Street Journal tops its world-wide newsbox with a tsunami update. Australia upped its aid to $764 million, making it the new top donor. Germany also increased its offering to about $690 million. The LAT notes some strings attached.
Knight-Ridder has one of the sobering assessments about Aceh, saying "medical care remained largely unavailable" along much of coast. But the Journal has a glimmer of hope, pointing out that an early decision by Singapore is beginning to pay off: Soon after the tsunami, the country sent an amphibious unit to set up a base for relief operations in the previously cut-off Melulaboh and it's just about up and running.
The NYT's Jane Perlez reports from one of Aceh's few functioning hospitals, where many survivors who had small cuts are now facing amputations. "A couple of drops of this putrid water gives these people rip-roaring pneumonia and lacerations that get horrendously infected," said one doctor. The potential amputees are the lucky ones. "People with no treatment at all are already dead." The Post has a similar though less evocative report.Nobody fronts three separate bombings in Iraq that killed about 20 Iraqis, mostly policemen. The Post says Baji's city council quit en masse after being threatened; an elections official was kidnapped in Baquba; and a police colonel was assassinated east of the capital. After calling President Bush a few days ago, apparently to test the water about delaying the elections, appointed Prime Minister Allawi clarified that he is "committed to holding the elections on schedule." Also yesterday, Bush chatted with Iraq's interim president who has also suggested delayed the elections. Citing "aides," the NYT says, Bush "pressed his point that the voting has to go ahead as scheduled."
The Post fronts, and other stuff, the head of the Army Reserve saying his 200,000 soldiers are "rapidly degenerating into a 'broken' force." The general made the comments in a memo to top brass leaders and cited the "Army Reserve's inability to meet mission requirements" for Iraq and Afghanistan. Some 40 percent of the soldiers in Iraq are reservists.
The LAT fronts word that one of the biggest business lobbies is going to launch a "multimillion-dollar campaign" supporting President Bush's court nominees, apparently marking one of the first times the biz world has made a big push for court picks.
In a NYT op-ed, Mark Danner says there's something different about how the torture scandal has unfolded:
The traditional story line in which scandal leads to investigation and investigation leads to punishment has been supplanted by something else. Wrongdoing is still exposed; we gaze at the photographs and read the documents, and then we listen to the president's spokesman "reiterate," as he did last week, "the president's determination that the United States never engage in torture." And there the story ends.
The headline: "WE ARE ALL TORTURERS NOW." Eric Umansky writes "Today's Papers" for Slate. He can be reached at todayspapers@hotmail.com.Article URL: http://slate.msn.com/id/2111886/


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