This is a shot across the bow to those of us concerned about the torture of prisoners of war and universal human rights. I wonder if 40 Senators will notice?
Gonzales wrote a now-leaked memo dated January 25, 2002 concerning the potential applicability of the Geneva Convention on the Treatment of Prisoners of War. He noted that the President and his advisors could one day be charged in the US with war crimes if they botched the handling of Taliban and al Qaeda fighters from Afghanistan.
The memo doesn't defend the use of torture, nor does it call for it. Rather, it defends the recommendation by the Justice Department that prisoners in the "war on terror" are not POWs and are instead something like "enemy combatants." By sticking to this argument, Gonzales reasons, American officials wouldn't have to worry about violating domestic and international law. Implicitly, this means that actions that would violate the rights of POWs under the Geneva Convention might be breached in the interrogation of prisoners in the "war on terror."
The memo, in short, was an attempt to provide legal cover to an administration potentially committing war crimes -- depending upon the thinking of future prosecutors, judges and juries. It justified the creation of the prison at Guantanamo.
The leaked memo can be found on the Newsweek website (pdf file). This is some of the magazine's text about it:
In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes—defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future...According to the memo, the Attorney General is charged by statute with "interpreting the law for the Executive Branch." This means for both domestic and international law.
One key advantage of declaring that Taliban and Al Qaeda fighters did not have Geneva Convention protections is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act," Gonzales wrote.
Gonzales, of course, is now nominated for that post. In the memo, he was acting merely as White House counsel.
Apparently, Colin Powell and the State Department lawyers were arguing that the Geneva convention did apply to the Taliban and should apply to al Qaeda. In the memo, Gonzales acknowledges that the US might be condemned by other states and even lose their cooperation in the war on terror. Bingo:
Joseph Onek, director of the Liberty and Security Initiative of the Constitution Project, says it was this kind of thinking that turned the world from supporting our invasion of Afghanistan after 9/11 to standing against us: "When you think about it, Guantanamo became a symbol around the world for American disrespect for law." He calls Gonzales' judgment "a disaster."Gonzales also advised the President to set up the military tribunals to try terrorists, which a federal court just called unconstitutional. And Gonzales was Bush's legal counsel in Texas when the then-Governor was using the death penalty without a lot of serious attention to the cases before him.
Michael Froomkin at Discourse Net blogged about the release of the memo some months ago.
Center for American Progress already has a fairly thorough "Record of Injustice" about Gonzales.
Time for a filibuster?
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