Sadly, some of the most important legal and policy issues raised by Koh, Hutson & Johnson were treated summarily, to a half-empty room, very late in a long day. These include:

• The precise scope of Geneva Conventions' applicability; 
• The effect of deviating from these Conventions on the US military in this and future conflicts, and
• The limits on Presidential authority. 

Inevitably these issues will not go away and will need to be resolved in the months and years ahead. And we will be there.

Many thanks to everyone for viewing the blog.  None of this could have been done without the invaluable assistance of Cynthia Burns, Jillian Gladstone, Stacy Kim, Gary Bond, Debbie Stewart and Ron Bigler. 

Leahy: How do these rules apply to terrorists?

Hutson: Attitude at the top of this Administration was that different rules apply to terrorists.  But there was no clarity about what the new rules were.  The result was no rules and abuses followed.

Cornyn: Should the US use all legal means to get needed intelligence?

All agree - the question is what are "all legal means?"

Specter: Does the nature of suspect make a difference in rules of questioning?

Leahy: Does the President have the authority to arrest a US citizen and hold them indefinitely?

Koh: There is no right to indefinite detention and the Supreme Court did not give Government that right

Leahy:  How should Al Qaeda & Taliban have been treated in Afghanistan?

Koh: All should have been given a hearing under Article 5 of the Geneva Conventions.  The Taliban were Afghanistan's army, so probably "Prisoners of War."

Leahy:  Geneva Conventions apply to those who do not respect them?

Koh:  Yes. US applies Geneva Conventions to all.  Doesn't mean they are all "Prisoners of War," but some of the Conventions' protections apply to all.

Leahy: Asks about the relationship of Army Field Manual and Geneva Conventions.  Does it prohibit questioning?

Hutson: Geneva Conventions do not prohibit questioning of those in custody.

Leahy: Some people are saying an independent commission should be established to study the pattern of abuses at Abu Ghraib & elsewhere.

Hutson: Agrees that this is needed

See retired military leaders' letter to Pres. Bush urging creation of independent commission: http://www.humanrightsfirst.org/us_law/PDF/detainees/Military_Leaders_Letter_President_Bush_FINAL.pdf

Specter asked the panelists about how the U.S. should deal with the ticking timebomb.

Koh's response: my approach would be to keep the flat ban and then someone decides to prosecute or not.  A loophole only water downs the prohibition.

Hutson agrees that torture should always be illegal.

Blogger Avi Cover has gone to appear on the Dan Abrams Show on MSNBC. 

Exec. Directior Mike Posner will now submit.

Testimony of Mr. Douglas A. Johnson,

Executive Director,

Center of Victims of Torture

Thank you for the invitation to testify today before the Committee on the nomination of the Honorable Alberto R. Gonzales as Attorney General of the United States of America.  I have submitted my written testimony and I would request that my written testimony be accepted for the written record of this hearing

Historically, campaigns to end torture have focused initially on two national authorities:  the President or chief executive and the head of the Ministry of Justice.  It is presumed that the President or Prime Minister has both the responsibility and the capacity to set values and policies that direct how security forces and all government officials operate.  The Minister of Justice or Attorney General has three important roles:  (1) to establish policies and procedures that diminish the incentive to use torture, such as regulating the role that confessions play in the overall administration of justice, (2) the prosecuting of or other sanctioning of torturers or persons who ill-treat detainees, and (3) the overall responsibility for avoiding impunity.  These roles require a clear understanding of what torture is and why it is wrong, as well as very practical ideas on how to prevent its use.

Because of heightened national and international concern about torture and issues that have been raised about this nomination, I have been invited to talk about the experience of the Center for Victims of Torture has had addressing these roles and what needs to be done to repair the standing of the United States in the world.

Background on Experience and CVT

The Center for Victims of Torture[1] is a non-partisan, non-profit organization established in 1985 as the first specialized institution in the United States to provide rehabilitation to victims of government-sponsored torture and to work for the abolition of torture.  CVT has provided care for almost 1000 survivors of torture from over 80 nations of the world, including American citizens who were tortured by foreign governments.  In 1998, at the invitation of the US State Department Bureau of Population, Migration, and Refugees, we initiated treatment projects in Sierra Leone and Guinea to assist survivors from Sierra Leone and Liberia, about 6,500 additional clients to our caseload.[2]  I have been the CVT’s Executive Director for more than 16 years.  What I have learned from our clients and their interactions with our staff of health professionals is the primary basis of my testimony.

In addition, CVT is one of the earliest members of the International Rehabilitation Council for Torture Victims (the IRCT) and a founder of the National Consortium of Torture Treatment Programs (NCTTP).  CVT provides technical assistance to 33 U.S. programs for torture survivors and another 17 international torture rehabilitation programs in places where torture has been widely practiced.  In September 2004 the Center for Victims of Torture also sponsored an international symposium on “New Tactics in Human Rights” in Ankara, Turkey, a culmination of nine years of interaction with the global human rights community about new ideas to create more effective strategies to improve human rights, including the abolition of torture.  565 participants from 89 nations participated in that symposium. 

In making my remarks today, I also draw from my experience as an original member of the Experts Panel on the Prevention of Torture of the Organization for Security and Cooperation in Europe in making my remarks.

Before addressing the heart of my testimony, I would like to make these preliminary comments. 

I have notified the Committee’s staff that I am not here to take a position on the nomination itself, as it is CVT’s policy not to comment on the qualifications of specific individuals for governmental posts.  I have been asked draw on the expertise of CVT in speaking about the January 25, 2002 memorandum emerging from the White House Counsel and other memoranda and discussions related to torture, as well as their implications for American policy.

I also reiterate that the Center for Victims of Torture is not only a non-partisan organization, but one that consistently and most consciously has sought to bridge partisan differences to focus on a basic American moral principle, reiterated by President Bush in his June 26, 2004, declaration on behalf of the United Nations International Day in Support of Victims of Torture:  “Freedom from torture is an inalienable right.”  We are very proud of our work with Senator David Durenberger of Minnesota in initiating the Torture Victims Relief Act; we worked closely with Senators Paul Wellstone and Rod Grams to achieve the bill’s passage in 1998, including the support from many members on this Committee; and we have found welcomed ongoing support from Senators Norm Coleman and Mark Dayton, continuing Minnesota’s bipartisan tradition of supporting victims of torture.

In 2001, in recognition of our work treating survivors of torture, Attorney General John Ashcroft awarded CVT the National Crime Victim’s Service Award.

Despite that bipartisan history, even we have found an increasingly partisan tone during the previous election period regarding the interpretation of the memoranda about torture and the nature and extent of interrogation methods used in Guantánamo, Abu Ghraib, and elsewhere.  We believe that Americans do not want to be, and cannot afford to be, partisan about the issue of torture.

In no small part, I decided to appear before this Committee because its Chairman, Senator Arlen Specter, was the primary champion of the 1992 Torture Victims Protection Act, a legislative breakthrough with enormous potential for the prevention of torture as well as the protection of its victims.  The TVPA has been broadly welcomed by human rights advocates around the world as a model of a new tactic in the arsenal of torture prevention.  I come today to seek continued leadership from this Committee, from the Congress, and from the Administration at a time when basic treaties and other human rights norms have been undermined and, for so many of us in the movement against torture, there has been a disheartening retreat from the clarity of the prohibition against all forms of torture, as well as cruel, inhuman or degrading treatment.

Torture is not a partisan issue.  The United States was deeply involved in the process of drafting the Convention Against Torture, both during the administrations of Jimmy Carter and Ronald Reagan.  For seven years, U.S. delegates worked to help make the language of the Convention concrete and enforceable.  The Reagan Administration submitted the Convention to the Senate in 1988 for its advice and consent.  The Administration of George H. Bush resubmitted it to the Senate the next year, and strongly supported ratification.  A bi-partisan coalition in the Senate worked to ensure ratification.  The Senate Foreign Relations Committee voted 10-0 to report the Convention favorably to the full Senate, which considered and supported a package of amendments presented jointly by Senators Helms and Pell.  It is an indication of the strength of the consensus about the prohibition of torture that the U.S. has ratified no other human rights treaty so promptly.

Concerns about Official Memoranda Justifying Torture.

Having worked with thousands of survivors from more than 80 countries around the world, we know what torture is and we know first hand its impact. 

Based on this experience, I was asked to address concerns about the memorandum prepared by White House Counsel Alberto R. Gonzales regarding the applicability of the Geneva Conventions, and a series of other memoranda prepared at his direction and distributed as legal positions within various parts of the government, including those by Jay Bybee and the Working Group on Interrogations.[3]

The memoranda not only make errors with regard to the legal prohibition of torture, but grave moral and political errors as well that have high costs for human beings and for the reputation of our nation in the world.  They disregard the human suffering caused by torture and inhumane treatment.  They are based on faulty premises, even fantasies, about the benefits/payoffs of torture.  They created vast political costs for our nation’s leadership role for human rights and democracy in the world.  What is striking about all of these memoranda is the lack of recognition of the physical and psychological damage of torture and inhumane treatment.

Human Costs

There are approximately 500,000 survivors of torture who have fled to this nation’s shores to seek safety and freedom from torture.  Although there are different physical symptoms associated with the form of torture they endured, there is a remarkably common pattern of profound emotional reactions and psychological symptoms that transcends cultural and national differences. The affects can include but are not limited to: re-experiencing the trauma, avoidance and emotional numbing, hyper arousal, depression, damaged self-concept and foreshortened future, dissociation/ depersonalization, atypical behaviors such as impulse control problems and high risk behavior, somatic complaints, sexual dysfunction, psychosis, substance abuse, and neuropsychological impairment such as the  loss of short-term or long-term memory, perceptual difficulties, loss of ability to sustain attention or concentration, and the loss of ability to learn.[4]

The main psychiatric disorders associated with torture are Posttraumatic Stress Disorder (PTSD) and Major Depression (DSM IV).[5] While it is important to recognize that not everyone who has been tortured develops a diagnosable mental disorder, it is equally important to recognize that for many survivors, the symptoms and aftereffects of torture endure for a life time. We know, for example, that survivors of the Holocaust and the concentration camps during World War II have much higher rates of clinical depression and suicide even 50 years after the conclusion of those events.  This suffering is not something that time simply heals.  We also know that torture can profoundly damage intimate relationships between spouses, parents, children and other family members, and between the victims and their communities. This level of trauma affects future generations, as again we see higher rates of suicide and depression among the children and grandchildren of Holocaust survivors.  These results have been repeated among survivors of other cruel and inhumane treatment.[6]

Through our examination and detailed work with survivors, we have reached conclusions about torture’s nature and purpose that we believe to be relevant for the discussion that must take place in our nation about the tolerance or intolerance of torture and any practices that border on it.  Torture in the modern world is not, primarily, a tool for gaining information, but rather a political weapon, that uses fear to shape societies.

The Bybee memorandum of August 2002 is particularly egregious and dangerous.  The overall tone of the Bybee memorandum restricts the definition of torture so narrowly that it could be used to justify various forms of torture.  One of the most problematic conclusions of that memo was the notion that  “These statutes suggest that ‘severe pain’ … would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions—in order to constitute torture.”[7]

When I first read this statement, I was reminded of our interactions with Vietnamese reeducation camp survivors recently arrived as refugees to the United States in the early 1990s.  They had been through horrific experiences that any reasonable person would understand to be torture with regard to direct physical coercion, conditions of malnutrition, and intentionally malevolent prison conditions.  Their symptoms were consistent with those of other survivors of torture we had seen from Cuba, Central and South America, Africa and Eastern Europe, and from Cambodia.  Yet we discovered that the Vietnamese word for torture literally meant “dying under torment.”  As they survived and still lived, it stood to reason that in their minds they were not “tortured.”  They didn’t have the concepts within their language to interpret and understand what had happened to them.  Bybee’s definition for torture appears to be “dying under torment.”  If we used this definition, the Center for Victims of Torture wouldn’t have clients at all.

The second extraordinary claim was that torture occurs only when the intent was to cause pain, rather than that pain was intentionally used to gain information or confessions:  “the infliction of such (severe) pain must be the defendant’s precise objective.”[8]   In other words, only when a sadist carried out techniques that lead to organ failure and death can we call it torture.

 This is not only a wrong definition from a legal point of view, it is morally wrong, and it is against American values.  With a definition like this, we can not retrieve the historic leadership role that the United States has played in the global campaign against torture.  We are thankful that the new Justice Administration memorandum of December 2004 recognizes the errors of the earlier memorandum and corrects some of them.[9]  We wish that it had not taken so long to do so.  After the Bybee definition was solicited, accepted, and circulated by Gonzales, hundreds of detainees under U.S. control have suffered from torture and inhumane and degrading treatment.

The American public and the world were shocked by the photos from Abu Ghraib.  They remind us that torture is not abstract:  it is dirty, intentionally humiliating, often sexual in its content, and degrading for the victim and the victimizer.

These photos were not the first credible reports on the use of torture in the war on terrorism.  At least two years previously, the Washington Post reported on incidents of torture and death during interrogations in Afghanistan.  Human rights organizations carefully monitored the situation based on highly restricted access, and concerns were raised by, among others, the UN Special Rapporteur on Torture.  We now know that the International Committee of the Red Cross—the institution assigned the responsibility to interpret and to monitor the Geneva Conventions—had expressed concerns about U.S. practices in interrogation and the hiding of prisoners from their view.  Such efforts to avoid ICRC access to detainees are a practice which, in every other circumstance has been accompanied by torture and is usually denounced by the State Department’s annual human rights review.  Since then, many other internal memoranda have been released to the public indicating that abuses including torture as well as inhumane treatment have been systematically practiced.  Perhaps the only truly good news from this sorry situation is the extent to which military personnel and lawyers, members of the FBI, and other government officials have denounced torture and ill-treatment of detainees and have used their influence to try and curb the abuses.

But it is not clear what their superiors did with the information, or whether their valiant efforts were ignored or heeded.  It is not encouraging, however, to learn that the abuses continued over time and, in fact, no outside monitor can assure us that they have ended altogether

Part of the problem is that the Bybee memorandum misuses a criminal statute for procedural and administrative guidelines.  The discussion on an appropriate definition of torture must distinguish between at least three operative differences:

1.                  The U.S. statute (18 U.S.C. §§ 240-2340A) implementing the Convention Against Torture must define torture with sufficient clarity to guide prosecutors and judges on issues of proscribed actions and evidence to meet the high standards of proof necessary to convict in U.S. criminal courts.

2.                  Another sort of definition prescribes what conduct must be avoided, as a matter of policy and procedures, by government agents with regard to  acceptable practices to use in interrogations.  Such a definition should be much broader and more inclusive, and not try to create a line that is too fine.

3.                  Health care professionals and those working with victims use the definition within the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[10]   Documentation of the experience and symptoms of torture within treatment tends to focus on scenarios and contexts, where various practices accumulate and mutually reinforce one another for effect, rather than individual forms of torture.  This provides a richer view to understand what happened and how it affects the survivor.  This more empirical approach allows the gathering of evidence that ultimately can help provide greater clarity for legal and policy purposes.[11] [12]

.

By confusing the criminal code definition with a guide to policy, Mr. Bybee twisted its content to become an advisory on how to avoid criminal prosecution.  The U.S. understanding of torture must be more inclusive than that needed to keep our interrogators out of jail.  It should be based on a clear view of the standards of human dignity that we stand for in the world.

The December 30 Memorandum of the Office of the Legal Counsel of the Justice Department recognizes some of the errors of the Bybee memorandum, in particular the definition of torture as pain equivalent in intensity to pain accompanying serious physical injury such as organ failure or death.  It also clearly states that torture is abhorrent to both the American law and values and to international norms.  But the new memo is problematic in other ways.  It assiduously refuses to provide a broad view of the appropriate standards for conduct of interrogations or detention.  In this sense, it does not escape the narrow focus on criminal prosecution that I discussed above.  It gives the impression that the Office of the Legal Counsel is not concerned with conduct which qualifies as “cruel, inhuman or degrading treatment or punishment.” The Torture Convention and U.S. law prohibit both torture and inhuman and degrading treatment.  The memo just says that torture is prohibited and then works with a narrow definition of torture.  We need top legal experts also to say what we stand for, not just what we are against.  What we stand for is clearly stated in Article 10 of the Covenant on Civil and Political Rights, which we have ratified without reservation:  “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”  The memo is also unclear about whether it applies to Guantánamo, Afghanistan, or Iraq, at a time when we are in great need of clarity on exactly those issues.[13] Finally, the new memo evades the question of whether the President has the authority to order that torture be inflicted.  It says it doesn’t have to deal with that issue because the President has stated an unequivocal directive that U.S. personnel not engage in torture.  But this leaves the impression that the President (or Secretary of Defense) could change his mind and ignore the limits on torture.  But in light of continuing evidence that the President’s directive has not been followed in the field, there is still a need for a stronger statement that U.S. and international law prohibit torture and inhuman and degrading treatment and must be followed in all circumstances.

Moral and political errors

Among the moral and political errors, the memoranda ignore that torture violates at least three important principles embedded in our Constitution that are such basic American values as to define our very identity.  These values include:

1)         “One is innocent until proven guilty.”  Perhaps this is the bedrock of Americans’ sense of justice.  Its corollary is that one should not be punished until that guilt is established.  But there is nothing more punishing than the strategic but sadistic use of pain to force a confession or to gain information.  Victims of torture—who tell us that they longed for death—would testify that this punishment is even worse than death.  Punishment before guilt is proven must be viewed as anathema to American’s values.

2)         Punishment must fit the crime, but should never descend to barbarity.  Hence, our 8^th Amendment to the Constitution prohibits all forms of “cruel and unusual punishments.”  This prohibition together with the privilege against self-incrimination in the 5^th Amendment and the prohibition of unlawful searches and seizures in the 4^th Amendment, led to the abolition of the “third degree” forms of interrogation by the U.S. Supreme Court in the 1930s, a euphemism for torture routinely applied by police before that time.  The Bybee Memorandum relies on a narrow legalistic interpretation of the 8^th amendment as applying only to punishment after conviction and therefore leaves open the possibility of using forms of pain prior to conviction.  While there may be court decisions to support this extremely narrow perception of the 8^th Amendment, the Bybee Memorandum’s approach ignores the fundamental and far broader American values which are reflected in the cruel and unusual punishments clause.  Further, the Bybee Memorandum’s approach ignores the first principle and pretends that torture is not an extreme form of punishment, both to the body and the soul of the victim.

3)         The most practical tool against torture is the Fifth Amendment to the U.S. Constitution, which protects the accused from self-incrimination (“nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”).  Our Founding Fathers did not write this protection to allow mobsters and the corrupt an easy pass to frustrate justice.  They recognized that the restriction puts the burden on the state to prove that a crime has been committed.  They did so in a time when torture was still a basic tactic of autocratic states to intimidate populations in the name of order.  Freedom from torture was one of the key struggles of the 18^th Century Enlightenment.  Even today, when human rights experts plan campaigns to end torture, they identify the need to limit the importance of confessions in legal proceedings as the single most important action to be taken.  Abolishing confessions—self-incrimination—takes away the incentive to use torture.

The Fifth Amendment has been much degraded by Hollywood movies and politicians.  That this protection has fallen from popular favor only indicates the degree to which most Americans have felt free from the fear of torture, a freedom that has expanded as our courts have given greater prominence to the Amendment’s protections.

Faulty premises

The assumption behind the memorandum, particularly the Bybee memorandum and the later report by the Working Group on Interrogation is that some form of physical and mental coercion is necessary to get information to protect the American people from terrorism.  These are unproven assumptions based on anecdotes from agencies with little transparency.  But they have been popularized in the American media by endless repetition of what is called the “ticking time bomb” scenario.  A version of this scenario is outlined in the findings of the Israeli Supreme Court, which outlawed the stress and duress type techniques reportedly now in use by American forces.  “A given suspect is arrested by the GSS (General Security Service).   He holds information respecting the location of a bomb that was set and will imminently explode.  There is no way to diffuse the bomb without this information. If the information is obtained, however, the bomb may be diffused.  If the bomb is not diffused, scores will be killed and maimed.  Is a GSS investigator authorized to employ physical means in order to elicit information regarding the location of the bomb in such instances?” [14]  There are variations on this scenario, often emphasizing an increasing number of victims or an ever more imminent blast.

The assumption of the Bybee memorandum is “yes, this is justified.”  The conclusion of the Israeli Supreme Court was that it was not.  I believe that the Court was right.  Based on our experience with torture survivors and understanding the systems in which they have been abused, we believe it is important that these discussions not be shaped by speculation but rather through an understanding of how torture is actually used in the world.  There are eight broad lessons we have learned from working with torture survivors:

1. Torture does not yield reliable information.  Well trained interrogators, within the military, the FBI, and the police have testified that torture does not work, is unreliable and distracting from the hard work of interrogation. Nearly every client at the Center for Victims of Torture, when subjected to torture, confessed to a crime they did not commit, gave up extraneous information, or supplied names of innocent friends or colleagues to their torturers.  It is a great source of shame for our clients, who tell us they would have said anything their tormentors wanted them to say in order to get the pain to stop.  Such extraneous information distracts, rather than supports, valid investigations.
2. Torture does not yield information quickly.  Although eventually everyone will confess to something, it takes a lot of time.  We know that many militaries and radical groups train their members to resist torture and to pass along false pieces of information during the process.  And we note that those with strong religious beliefs and those with strong political beliefs that help them understand the purposes of torture used against them are most able to resist and to recover from its impact.
3. Torture will not be used only against the guilty.  Inherent in all of the scenario building is the assumption that we know, with great reliability, that we have the appropriate party who possesses knowledge that could save lives.  But our clients are living testimony that once used, torture becomes a fishing expedition to find information.  It perverts the system which, seeking shortcuts to the hard work of investigation, relies increasingly on torture.  The estimate from the Red Cross was that at least 80% of those imprisoned at Abu Ghraib, for example, should never have been arrested, but were there because it was easier to arrest persons than to let them go (people feared letting go a terrorist more than protecting the innocent).  The Israeli Security system claimed to use its stress and duress techniques only where they had the most reliable information about the detainee’s guilt.  Yet human rights monitors estimate that they were used on over 8000 detainees.  It is not credible to believe they had this precise information about so many.[15]
4. Torture has a corrupting effect on the perpetrator.  The relationship between the victim and the torturer is highly intimate, even if one sided.  It is filled with stress for the interrogator, balancing the job with the moral and ethical values of a person with family and friends.  One way this cognitive dissonance is managed is through a group process that dehumanizes the victim.  But still another way is to insure that some sort of confession is obtained to justify to the interrogator and to his superiors that pain and suffering was validly used.[16]
5.  Torture has never been confined to narrow conditions.  Torture has often been justified by reference to a small number of people who know about the “ticking time bomb,” but in practice, it has always been extended to a much wider population.
6. Psychological torture is damaging.  When torture is defined as strictly a physical act, many believe that psychological coercion is okay.  I was surprised when I began working at CVT to find that our clients said it was the psychological forms of torture that were the most debilitating over a long period.  The source of their nightmares, 15 and 20 years later, was the mock executions or hearing others being tortured.  The lack of self-esteem and depression were more related to scenarios of humiliation, consciously structured to demean the victim.  Many within the world treatment movement believe we have seen increasingly sophisticated forms of psychological torture over the past twenty years.
7. Stress and duress techniques are forms of torture.  Many of these techniques were developed during Israel’s struggle against terrorism, and so this example is often cited for effective interrogation techniques falling short of torture.  But the Israeli Supreme Court concluded that they were illegitimate.  Every democratic nation’s court system and international court which has reviewed them has concluded that they are forms of torture.[17]
8. We cannot use torture and still retain the moral high ground.  The arguments we hear are not so different in form and content from those used by the repressive governments of CVT’s clients, and which the U.S. has refused to accept from other nations that have used torture to combat their real or perceived enemies.  Torture is not an effective or efficient producer of reliable information.  But it is effective and efficient at producing fear and rage, both in the individuals tortured and in their broader communities.

Costs to America’s Leadership

America has much of which to be proud of in its leadership on torture over the past two decades.  Legislation such as the TVPA has provided new ways for survivors of torture to seek justice and also ways of warning torturers that their impunity has real limits.  The U.S. is the single largest contributor to efforts to support the care and rehabilitation of torture victims through the TVRA and other efforts supported by Congress.  Congress has actively investigated cases of torture and many members have devoted personal efforts to protect individuals and protest government policies of torture.  This Congressional action has set into motion a series of national institutions and policies that have worked against torture, such as the creation of the human rights bureau at State Department, whose annual report regularly reports on issues of torture.  I have been asked by State Department officials on several occasions to meet with them and representatives of states that use torture so that the experience of the torture rehabilitation network could come to bear on the discussion.  Through our New Tactics in Human Rights program, we have consulted with State on ideas and projects that might help diminish the acceptability of torture in a number of nations.  I have been proud to serve on the U.S. delegation to the Human Dimension Meeting of the OSCE and deliver our nation’s statement on the prevention of torture.

The costs to America are far reaching, from the disillusionment and fear of individuals, on the one hand, to complications in our ability to conduct foreign policy, on the other.

For CVT clients and other torture victims living in the U.S., there is increased anxiety and a sense of danger to them.  They fled seeking safety in a nation known to protect individuals from the abuse of the state.  Now they see this guardian engaging in behavior so reminiscent of what happened in their own nation. 

Human rights organizations in repressive countries now express fear that they no longer have the assistance and assurance of the U.S. to protect them as human rights defenders from torture.  At the recent New Tactics in Human Rights Symposium in Ankara, Turkey, a number of human rights defenders told me that their governments now say that they are only doing what the Americans do.  Perceptions of greater vulnerability and fear can reduce the activity of those needed to identify and work to correct human rights abuses in their home countries, including much of the Middle East.

It is not an abstraction for us to say that the August 2002 memorandum received and disseminated by Mr. Gonzales also increases the danger of torture to American citizens.  CVT has provided care to American torture survivors—religious leaders, businessmen, tourists—tortured in as diverse locales as Mexico and Saudi Arabia.  The struggle to end torture everywhere is to our nation’s benefit in an increasingly globalized world.

Yet for those who oppose America, the use of torture proves to them what they thought they already knew about American policy and justifies to themselves the use of extreme violence against American interests and people.  It changes their political calculations of what they can get away with and still attracts public support for their cause.  Torture produces rage and fear, not only with the victims, but in their society. 

The memoranda create a global impression that the U.S. rejects world consensus on basic issues, such as human rights.  They embarrass the United States and undermine our political credibility on many other foreign policy issues.

What Must Be Done?

In March, 2003, President Bush met with the recently appointed UN High Commissioner for Human Rights, Mr. Sergio de Mello, in the Oval Office a few months before Mr. de Mello was killed in a terrorist bombing in Iraq.  At that time, there were already concerns being raised about the conduct of American interrogations in Afghanistan.  I am told that President Bush himself raised the issue of torture, saying that he would never authorize or condone torture as President of the United States.  But, he added, that if there were another terrorist attack like the Twin Towers, he would have to explain to the American people why he did not.

This is a terrible burden to bear, balancing effectiveness in performing his duty to protect the American people and holding firm to an important American value.  There are voices telling him that this is no burden and offering torture as an effective instrument of policy with minimal moral and political consequences.  There are other voices, as in the Gonzalez and Bybee memoranda, that try to relieve the burden by separating the concepts from the reality that is torture.  These answers do not relieve the burden, they only increase the temptation.

It is up to all of us, to members of this Senate, and to the U.S. Attorney General to be clear that torture is a line we will not cross under any circumstances or for any purpose.  It is imperative to U.S. security, the success of our foreign policy and the safety of Americans working and living abroad that the Attorney General is in agreement with American values and will use the full scope of American and International law to take a responsible stance in actively denouncing torture and that he will work vigorously to prevent the use of torture and prosecute perpetrators.

To that end I respectfully call on the Senate Judiciary Committee to require a routine report from the Department of Justice on their work to stop and prevent the use of torture including their collaborative efforts with the Department of Defense and the Department of State. I ask that the Committee keep the issue of torture on the forefront of their agenda. America needs you to be vigilant in your questioning and oversight until it is clear in both our tacit and explicit policies and our actions that the U.S. is back on course and is in full compliance with national and international law and American values.

When speaking on the Senate Floor in support of ratification of the Convention Against Torture, Senator Nancy Kassebaum said “I believe we have nothing to fear about our compliance with the terms of the treaty.  Torture is simply not accepted in this country, and never will be.”[18]   This is as true today as it was then.   Now, let us make it so.

Thank you.

This is Dean Koh's written testimony:

 Statement of Harold Hongju Koh

Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law

Yale Law School

before the Senate Judiciary Committee

regarding

The Nomination of the Honorable Alberto R. Gonzales

as Attorney General of the United States

January 7, 2005

            Thank you, Mr. Chairman and Members of the Committee, for inviting me today.

I am the Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at Yale Law School, where I have taught since 1985 in the areas of international law, the law of U.S. foreign relations, and international human rights.[1]  I have twice served in the United States government: during the Reagan Administration between 1983-85, as an Attorney-Adviser at the Office of Legal Counsel of the U.S. Department of Justice, and during the Clinton Administration between 1998-2001, as Assistant Secretary of State for Democracy, Human Rights and Labor.

I do not appear today to advise you on how to vote regarding this nomination. Your decision as to whether this candidate deserves confirmation as Attorney General ultimately turns on many factors about which you Senators are more expert than I. Your decision may also involve qualifications and positions of Mr. Gonzales that I have neither reviewed nor researched.

 I appear today solely to comment upon Mr. Gonzales’ positions regarding three issues on which I have both legal expertise and government experience: the illegality of torture and cruel, inhuman and degrading treatment, the scope of the President’s constitutional powers to authorize torture and cruel treatment by U.S. officials, and the applicability of the Geneva Conventions on the Laws of War to alleged combatants held in U.S. custody.

With respect to these three issues, my professional opinion is that United States law and policy have been clear and unambiguous. Torture and cruel, inhuman and degrading treatment are both illegal and totally abhorrent to our values and constitutional traditions. No constitutional authority licenses the President to authorize the torture and cruel treatment of prisoners, even when he acts as Commander-in-Chief. Finally, the U.S. has long recognized the broad applicability of the Geneva Conventions, which is a critical safeguard for our own troops now serving in more than 130 countries around the world. These legal standards apply to all alleged combatants held in U.S. custody. 

These are legal principles of the highest significance in American life.[2] To be true to the oath of his office, the Attorney General must swear to uphold the Constitution and laws of the United States of America.  He must be committed to enforcing strictly the laws banning torture and cruel treatment. He must observe ratified treaties banning torture and requiring humane treatment of prisoners, and he must ensure that the President abides by the constitutional principle of separation of powers. Most fundamentally, the Attorney General must assure that no one is above the law—even the President of the United States—and that no person is outside the law, whether that person is deemed an “enemy combatant,” or held outside the United States or on Guantanamo.

As Americans, we are unalterably committed to the rule of law and the notion that every person has certain inalienable rights.  Mr. Gonzales’ record and public statements could be read to suggest: first, that the extraordinary threats that we face in the war on terrorism somehow require that the President act above the law, and second, that those who are deemed “enemy combatants” or are held on Guantanamo live outside the protections of the Convention Against Torture and the Geneva Conventions as “rights-free persons” in “rights-free zones.” 

As Attorney General, Mr. Gonzales must ensure that no person is above the law and that no person is outside the law.  His positions on these important issues are thus highly relevant to his fitness to serve as Attorney General.

I.                   The Illegality of Torture and Cruel Treatment

Article 5 of the Universal Declaration of Human Rights states unequivocally that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” In 1994, the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states in Article 2 that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” While serving as Assistant Secretary for Democracy, Human Rights, and Labor in 2000, I stated, upon presenting the United States’ first report on its compliance with the Convention Against Torture to the United Nations in Geneva, that “as a country we are unalterably committed to a world without torture.”[3]

This remains the announced policy of this Administration. In June of last year, President Bush reiterated:

“Today … the United States reaffirms its commitment to the worldwide elimination of torture. . . .  Freedom from torture is an inalienable human right, and we are committed to building a world where human rights are respected and protected by the rule of law. To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees.”[4]  

Despite this unambiguous policy, as the President’s chief counsel, Mr. Gonzales apparently requested a number of legal memoranda setting forth the administration's legal framework for conducting the war on terrorism. Of these, the most important is an August 1, 2002 memorandum from Jay S. Bybee of the Office of Legal Counsel (OLC) to Mr. Gonzales regarding coercive interrogation tactics. This opinion was not rescinded until last week, more than two years after it first issued.[5] It is more than fifty pages long and has been summarized repeatedly in the press.

Having worked in both Democratic and Republican administrations, and for more than two years as an attorney in the Office of Legal Counsel itself, I am familiar with how legal opinions like this are sought and drafted.  I further sympathize with the tremendous pressures of time and crisis that government lawyers face while drafting such opinions.

Nevertheless, in my professional opinion, the August 1, 2002 OLC Memorandum is perhaps the most clearly erroneous legal opinion I have ever read.  The opinion has five obvious failures. First, it asks which coercive interrogation tactics are permissible, never mentioning what President Bush correctly called every person’s “inalienable human right” to be free from torture.[6]  The opinion’s apparent purpose is to explore how U.S. officials can use tactics tantamount to torture against suspected terrorists, without being held criminally liable.[7]  Second, the opinion defines “torture” so narrowly that it flies in the face of the plain meaning of the term. For example, the memorandum would require that the interrogator have the precise objective of inflicting “physical pain … equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” August 1, 2002 OLC Memorandum at 1. Under this absurdly narrow legal definition, many of the heinous acts commited by the Iraqi security services under Saddam Hussein would not be torture.[8] Third, the OLC memorandum grossly overreads the inherent power of the President under the Commander-in-Chief power in Article II of the Constitution, an error I discuss in Part II below.

Fourth, the August 1 memorandum suggests that executive officials can escape prosecution for torture on the ground that “they were carrying out the President’s Commander-in-Chief powers.” The opinion asserts that this would preclude the application of a valid federal criminal statute “to punish officials for aiding the President in exercising his exclusive constitutional authorities.” Id. at 35.  By adopting the doctrine of “just following orders” as a valid defense, the opinion undermines the very underpinnings of individual criminal responsibility. These principles were set forth in the landmark judgments at Nuremberg, and now embodied in the basic instruments of international criminal law.[9]

Fifth and finally, the August 1 OLC memorandum concludes that, for American officials, the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment allows cruel, inhuman, or degrading treatment as permissible U.S. government interrogation tactics.  In effect, the opinion gives the Executive Branch a license to dehumanize, degrade, and act cruelly, notwithstanding the Fifth Amendment’s rejection of government acts that shock the conscience and the Eighth Amendment’s rejection of any “cruel and unusual punishments.”

Left unchallenged, such dangerous reasoning could even be used to justify the atrocities at Abu Ghraib.  For if U.S. and international law do not forbid cruel, inhuman, and degrading treatment, then lower executive officials would have a license to degrade and dehumanize detainees in their custody, without regard to whether those detainees hold any information of value in the war against terror.[10]

The August 1 OLC memorandum cannot be justified as a case of lawyers doing their job and setting out options for their client. If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no.  A lawyer has no obligation to aid, support, or justify the commission of an illegal act.           

In sum, the August 1, 2002 OLC memorandum is a stain upon our law and our national reputation. A legal opinion that is so lacking in historical context, that offers a definition of torture so narrow that it would have exculpated Saddam Hussein, that reads the Commander-in-Chief power so as to remove Congress as a check against torture, that turns Nuremberg on its head, and that gives government officials a license for cruelty can only be described--as my predecessor Eugene Rostow described the Japanese internment cases—as a “disaster.”[11] 

One would have expected the Counsel to the President to have immediately repudiated such an opinion. Mr. Gonzales did not. Nor did he send the opinion back to the Office of Legal Counsel to take account of the unambiguous views of the State Department –expressed in the official 1999 U.S. Report on the Convention Against Torture discussed above—or to incorporate the President’s unambiguous policy against torture. Instead, the 2002 OLC Opinion was apparently transmitted to the Defense Department, where its key conclusions appear to run through the Defense Department’s April 4, 2003 Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations.[12] 

In a June 22, 2004 press conference, Mr. Gonzales did not repudiate the opinion, but instead stated that "[u]nnecessary, over-broad discussions in some of these memos that address abstract legal theories, or discussions subject to misinterpretation, but not relied upon by policymakers are under review, and may be replaced, if appropriate, with more concrete guidance addressing only those issues necessary for legal analysis of actual practice.”[13] Another six months then passed before the Office of Legal Counsel, last week, finally repudiated its earlier opinion’s overly narrow definition of torture.[14] Thus, the OLC opinion apparently remained the controlling executive branch legal interpretation for nearly two and one-half years. Even now, the Office of Legal Counsel has not yet clearly and specifically renounced the parts of the August 1, 2002 OLC opinion concerning the Commander-in-Chief power, stating that “[c]onsideration of the bounds of any such authority would be inconsistent with the President’s unequivocal directive that United States personnel not engage in torture.” Levin Memorandum, supra note 5, at 2.

This reading simply begs the question of  whether the President and his subordinates have legal authority to commit torture and cruel treatment—but have chosen not to exercise it—or whether, as I believe, the Constitution, treaties and laws of the United States deny the President and his subordinates that power.  Although the new OLC Opinion marks a welcome, if long-delayed, repudiation of the August 1, 2002 OLC Opinion, it still leaves unclear what legal rules constrain U.S. interrogators. Nor is it clear from the written record what Mr. Gonzales’ own current views are.[15]   

Our nation’s chief law enforcement official should not tolerate such ambiguity on a matter so central to our national values. Mr. Gonzales should commit himself, if confirmed as Attorney General, to repudiate all elements of the August 1, 2002 OLC Memorandum and to rigorously enforce all treaties and laws barring torture and cruel, inhuman, and degrading treatment.

II. The President’s Inherent Constitutional Powers

As noted above, the August 1, 2002 OLC memorandum grossly overreads the inherent power of the President under the Commander-in-Chief power in Article II of the Constitution. The memorandum claims that criminal prohibitions against torture do “not appl[y] to interrogations undertaken pursuant to [the President’s] Commander-in-Chief authority,” id. at 35. Yet the Eighth Amendment does not say “nor [shall] cruel and unusual punishments [be] inflicted” except when the Commander-in-Chief orders, and the Fifth Amendment’s Due Process Clause nowhere sanctions executive torture.

As remarkably, the August 1 memorandum declares that “[a]ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” August 1, 2002 OLC Memorandum at 39.[16]  But if the President has the sole constitutional authority to sanction torture, and Congress has no power to interfere, it is unclear why the President should not also have unfettered authority to license genocide or other violations of fundamental human rights.[17]  In a stunning failure of lawyerly craft, the August 1, 2002 OLC Memorandum nowhere mentions the landmark Supreme Court decision in Youngstown Steel & Tube Co. v. Sawyer, where Justice Jackson’s concurrence spelled out  clear limits on the President’s constitutional powers.[18]

Under these parts of the August 1, 2002 OLC memorandum (which unlike the narrow torture definition have not been formally replaced), the President would have constitutional power to ignore the criminal prohibition against torture in 18 U.S.C. § §  2340-40A, or to flout the recent Defense Authorization Act, which states that "[i]t is the policy of the United States to— (1) ensure that no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States."[19]  Moreover, this reading of the President’s Commander-in-Chief power would even allow him to order subordinates to trump Congress’ power under Article I, section 8, clause 10 to “define and punish … offences against the law of nations” such as torture.

This sweeping view of the President’s powers to conduct the war on terror has  not been confined to the area of torture. In a recently unearthed OLC memorandum to Mr. Gonzales’ office, dated two weeks after September 11, then-Deputy Assistant Attorney General John C. Yoo asserted that “[t]he historical record demonstrates that the power to initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively with the President.”[20] This remarkably overbroad assertion not only ignores Congress’ power “to declare war,” Art. I, sec. 8, cl. 11, but also suggests that several centuries of congressional participation in initiating war—including the declarations of war in the War of 1812 and the two world wars, the authorizing statutes in the two Gulf Wars, the Korean War, the Indochina conflict, and after September 11-- were all constitutionally unnecessary.[21]

Mr. Gonzales’ own brief statements have also urged a broad view of the president’s constitutional powers to conduct the “war on terror.”  In claims that have now been largely rejected by the United States Supreme Court, he has asserted the President’s broad power as Commander-in-Chief to label detainees as enemy combatants and to detain them indefinitely and incommunicado without judicial oversight or express congressional authorization.[22] In a speech before the American Bar Association’s Standing Committee on Law and National Security, Mr. Gonzales suggested that when detaining so-called “enemy combatants,” “there is no rigid process for making such determinations –and certainly no particular mechanism required by law. Rather, these are the steps that we have taken in our discretion.” Later in the same address, he suggested that in such actions, the President was constrained less by the rule of law than “as a matter of prudence and policy.” [23]

The Attorney General has a duty not just to serve his client, but more fundamentally to support, protect, and defend the Constitution’s commitment to a system of checks and balances. Mr. Gonzales should clarify his views regarding the appropriate balance among executive, judicial and congressional authority to conduct a “war against terrorism” and what limits the Constitution places upon the scope of the President’s power to authorize torture and cruel, inhuman, and degrading treatment.

III. The Applicability of the Geneva Conventions

Far from being outmoded, the Geneva Conventions of 1949, which the United States has ratified, set forth the international humanitarian law war applicable to all international armed conflicts.  In particular, the Third and Fourth Conventions specify terms of detention for prisoners of war and civilians in such conflicts. Mr. Gonzales’  January 25, 2002 Memorandum to the President correctly notes, at 2: “Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either U.S. or opposing forces engaged in armed conflict, despite several opportunities to do so.”  Yet as Counsel to the President, Mr. Gonzales found that the war on terror presents a “new paradigm [that] renders obsolete Geneva’s strict limitations on questioning of enemy prisoners." In the same opinion, he rejected the views of the Secretary of State and concluded instead that the United States is not bound by its obligations under the Geneva Conventions in the conflict in Afghanistan.

Unsuccessfully urging that this policy be reconsidered, Secretary of State Colin Powell argued that:

It will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the rule of law for our troops, both in this specific conduct and in general. It has a high cost in terms of negative international reaction, with immediate adverse consequences for our conduct of foreign policy. It will undermine public support among critical allies, making military cooperation more difficult to sustain.[24]

State Department Legal Adviser William H. Taft IV echoed Secretary Powell’s protest, noting that Mr. Gonzales’ decision “deprives our troops [in Afghanistan] of any claim to the protection of the Conventions in the event they are captured and weakens the protections afforded by the Conventions to our troops in future conflicts.”[25] By contrast, a decision that the Geneva Conventions did apply to the conflict in Afghanistan would have been consistent with the plain language of the treaties, the unbroken practice of the United States over the prior half-century, the practice of every other known party to the Conventions, and the express terms of the U.N. Security Council Resolution authorizing the intervention in Afghanistan.[26]

            The Administration could have conducted case-by-case status review hearings as required by Article 5 of the Geneva Conventions, to determine whether POW status might be appropriate in some cases.  Instead Mr. Gonzales urged a blanket exclusion of the Afghanistan conflict from the operation of the Convention. Under this reasoning, Taliban fighters, who were acting as the armed forces of Afghanistan at the time, had no legal entitlement even to the humane treatment mandated by the Conventions.  Yet if this were true, the same treatment would arguably apply to American soldiers sent to the Afghan war.

Ironically, Mr. Gonzales’ own memorandum correctly identified, but then rejected, the major problems created by his own legal determination:

·        “The United States could not invoke the GPW [the Geneva Conventions] if enemy forces threatened to mistreat or mistreated U.S. or coalition forces captured during operations in Afghanistan, or if they denied Red Cross access or other POW privileges ….

·        Our position would likely provoke widespread condemnation among our allies and in some domestic quarters, even if we make clear that we will comply with the core humanitarian principles of the treaty as a matter of policy.

·        Concluding that the Geneva Convention does not apply may encourage other countries to look for technical ‘loopholes’ in future conflicts to conclude that they are not bound by GPW either.

·         Other countries may be less inclined to turn over terrorists or provide legal assistance to us if we do not recognize a legal obligation to comply with the GPW.

·         A determination that GPW does not apply to al Qaeda and the Taliban could undermine U.S. military culture which emphasize maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.” January 25, 2002 Memorandum at 2.[27]

In February 2002, the President directed United States Armed Forces to continue to treat all detainees humanely, and to the extent appropriate and consistent with military necessity, in “a manner consistent with the principles of [the] Geneva Conventions."[28]  But prisoner abuse at Abu Ghraib and reports of mistreatment on Guantanamo and elsewhere raise serious doubts as to whether this exhortation has been effective.  Nor did the February 2002 directive specifically order civilian personnel in the intelligence services or civilian contractors to desist from coercive interrogation or cruel, inhuman and degrading treatment.  Even apart from the Geneva Convention, the United States has a separate treaty obligation, under Article 16 of the Convention Against Torture, “to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment which do not amount to torture as defined in Article I of the Convention, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”  (emphasis added).

Since the onset of the war in Iraq in March 2003, the Administration has conceded that the Geneva Conventions apply to that conflict, but more than a year after the invasion, Mr. Gonzales requested from the Justice Department’s Office of Legal Counsel an opinion regarding Article 49 of the Fourth Geneva Convention. That provision unequivocally states that “[i]ndividual or mass forcible transfers of protected persons [e.g. noncombatant civilians] from occupied territory … are prohibited, regardless of their motive.” (emphasis added)  Yet in response, OLC provided a draft opinion asserting that Article 49 does not prohibit temporary relocation of “protected persons” “for a brief but not indefinite period, to facilitate interrogation.”[29]  

Taken together, Mr. Gonzales’ legal positions have sent a confusing message to the world about our Nation’s commitment to human rights and the rule of law. They have fostered a sense that we apply double standards and tolerate a gap between our rhetoric and our practice. Obviously, our country has faced a dangerous threat since September 11, and we expect our leading officials to respond. But we should not discount the enormous costs to our reputation as a leader on human rights and the rule of law from the perception that we have waged a war on terror by skirting the Torture Convention, upsetting constitutional checks and balances, opening loopholes in the Geneva Conventions, and creating extra-legal persons and extra-legal zones.

 The Attorney General of the United States must ensure that no person is above the law, and that no person is outside the law. I urge you to closely examine Mr. Gonzales’ views on these matters and to give very careful consideration to his record and his current legal opinions. His willingness to commit to renouncing torture and cruel treatment as instruments of U.S. policy, to preserving the constitutional system of checks and balances and to ensuring strict U.S. observance of the Geneva Conventions should be key factors in evaluating his fitness to serve as our nation’s highest law enforcement officer.

Thank you. I now stand ready to answer any questions the Committee may have.

Appendix

Harold Hongju Koh is Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, where he has taught since 1985, and has served as the fifteenth Dean since July, 2004.  A Korean-American, Professor Koh and his family moved to New Haven in 1961. From 1998 to 2001, he served as Assistant Secretary of State for Democracy, Human Rights and Labor.  He teaches international law, the law of U.S. foreign relations, international human rights, international organizations and international regimes, international business transactions, international trade and civil procedure.  A graduate of Harvard College 1975 (summa cum laude in Government), Magdalen College, Oxford 1977 (Marshall Scholar and First Class Honours in Philosophy, Politics and Economics), and Harvard Law School 1980 (cum laude Developments Editor of the Harvard Law Review), Professor Koh went on to serve as law clerk to Judge Malcolm Richard Wilkey of the D.C. Circuit (1980-81), and Justice Harry A. Blackmun of the U.S. Supreme Court (1981-82). Before coming to Yale, he practiced law at the Washington D.C. law firm of Covington and Burling (1982-83) and at the Office of Legal Counsel at the U.S. Department of Justice (1983-85). He has written more than 80 articles and authored or co-authored eight books, including Foundations of International Law and Politics (2004 Foundation with O. Hathaway); The Human Rights of Persons with Intellectual Disabilities: Different But Equal (2003 Oxford with S. Herr & L. Gostin); Transnational Business Problems (2003 Foundation with D. Vagts and W. Dodge); The Justice Harry A. Blackmun Supreme Court Oral History Project (released 2004); Deliberative Democracy and Human Rights (1999 Yale with R. Slye), International Business Transactions in United States Courts (Hague Academy of International Law 1996); Transnational Legal Problems (2d ed. 1994 Foundation with H. Steiner & D. Vagts) and The National Security Constitution (Yale 1990), which won the American Political Science Association's award as best book on the American Presidency.

Dean Koh is a Fellow of the American Academy of Arts and Sciences, an Honorary Fellow of Magdalen College, Oxford (where he was 1997 Waynflete Lecturer), and has been a Visiting Fellow at All Souls College, Oxford. He is an Overseer of Harvard University and a member of the American Law Institute. He has served as an Editor of the American Journal of International Law and the Foundation Press Casebook Series. He has received Guggenheim and Century Foundation Fellowships and has been awarded seven honorary doctorates and law school medals from the Villanova Law School and Touro Law School. He sits on the boards of directors of the National Democratic Institute, Human Rights First, and Human Rights in China and has received more than twenty awards for his human rights work. He has given several dozen named lectures and received the 2003 Wolfgang Friedmann Award from Columbia Law School for outstanding work in International Law. He was named by American Lawyer magazine as one of America's 45 leading public sector lawyers under the age of 45, and by A Magazine as one of the 100 most influential Asian-Americans of the 1990s. He lives in New Haven with his wife, Mary-Christy Fisher, a legal services attorney, and their children Emily (18) and William (14). For a fuller curriculum vitae, see http://www.law.yale.edu/outside/html/faculty/hkoh/profile.htm.

Testimony of Admiral John D. Hutson (Ret. USNavy), President and Dean, Franklin Pierce Law Center

Specter asks about the Bybee memo - whether he agrees with its statement "Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategy or tactical decisions on the battlefield."

Gonzales says he rejects that statement. 

It's about time.  That's a little progress. What happened for two years?

Gonzales states he disagrees with the Hamdan v. Rumsfeld decision finding the military commissions unlawful.

Gonzales states that as a general matter the International Committee of the Red Cross shuld have access to all detianees.

What does a "general matter" mean?

Specter criticizes Gonzales for having not brought the Senate into the loop on issues at Guantanamo and the Bybee torture memo of 8/1/02.

There's only been one question on how Gonzales would deal with detention of people in the US, those he deems enemy combatants;  He needs to give some answers, but these questions need to be asked:

1.      In light of the U.S. Supreme Court’s ruling in Hamdi v. Rumsfeld, what limitations do you now believe exist on the President’s powers to detain those he deems “enemy combatants” in the “war on terror”?  Has the Court’s decision in Hamdi prompted you to reconsider any of the views you had expressed beforehand on the breadth of executive powers – such as in your remarks before the American Bar Association last February?

2.      In light of the U.S. Supreme Court’s ruling in Rasul v. Bush, do you now accept that those individuals detained at Guantanamo Bay have the right to challenge the legal and factual basis of their detention in U.S. courts?  As Attorney General, how will you advise that right be implemented? 

3.      What do you consider to be the appropriate level of deference the judiciary should give to the executive’s finding that an individual is an “enemy combatant”?

4.      Do you believe the Combatant Status Review Tribunal process implemented at Guantanamo Bay provides sufficient process so as to render federal court review unnecessary?

5.      As Attorney General what criteria would you use in determining whether you would recommend prosecution in federal court of an individual belonging to al Qaeda arrested on suspicion of planning a bomb attack?

6.      You have stated that “[t]o suggest that an al Qaeda member must be tried in a civilian court because he happens to be an American citizen . . . is to apply the wrong legal paradigm.”  Could you explain why this is necessarily the case and what are the inadequacies of our present criminal justice system for dealing with al Qaeda and other suspected terrorists?

7.      Given Justice O’Connor’s clear statement in Hamdi v. Rumsfeld that enemy combatants have a right to legal counsel, are Jose Padilla and Ali Saleh Kahlah Al-Marri legally entitled to full access to their legal counsel?   Are those detained at Guantanamo Bay who are represented by counsel legally entitled to full access to their counsel?  If not, what limits would you seek to apply as Attorney General?

Hey Senate Staff - have your bosses ask these questions:

1.                  Which interrogation tactics were deemed acceptable under the laws prohibiting torture and cruel, inhuman or degrading treatment or punishment?  (See also Letter to Alberto R. Gonzales, Counsel to the President, from John C. Yoo, Deputy Asst. Attorney General, Office of Legal Counsel (August 1, 2002).)

2.                  What did you do with the August 1, 2002 Bybee memo when you received it? With whom did you share it?  With whom did you discuss its legal analysis? Did you approve its analysis?

3.                  The Bybee memo served as the basis for much of the legal analysis in the Pentagon Working Group Report (April 4, 2003), which in turn supported newly authorized interrogation for use at Guantanamo (April 16, 2004)?  How did the DOD Working Group come to employ so much of the language of the Bybee memo?  Who transmitted the Bybee memo to the Working Group?

4.                  Had you previously raised any concerns about its contents between August 2002 and June 2004?  Are there parts of the Bybee memo that you find objectionable?  Are there any portions of the legal argument with which you disagree? 

5.                  Do you agree with the Bybee memo’s claim that “even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability?”  Do you agree with its claim that the torture statute does not preclude the forced administration of all drugs, but rather prohibits only the use of drugs that “disrupt profoundly then senses or the personality . . .  manifested by “dementia,” “brief psychotic disorder[s],” “obsessive-compulsive disorder behaviors,” and “pushing someone to the brink of suicide?”  Finally, must an interrogation technique cause, as the Bybee memo argues, “severe pain” at least as great as that associated with organ failure in order to constitute torture?

6.                  Article 2 of the Convention against Torture states, in relevant part: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”  Do you believe any “exceptional circumstances” exist that would justify torture?  Would you authorize the use of torture as Attorney General in any circumstances?

7.              As Attorney General you would oversee the Office of Legal Counsel.  As the office primarily responsible for rendering legal advice to all government agencies, OLC has exerted significant influence over interrogation policy.  From as early as January 2002 to as late as March 2004, OLC has issued a series of memoranda, variously determining that the United States was not bound by the Geneva Conventions with respect to certain groups in Afghanistan and Iraq, and that particular interrogation methods rising to level of extreme violence and degradation did not violate U.S. or international law.  Many of the arguments are inconsistent with binding domestic and international law.  These memoranda have served as the basis for many policies reflected in DOD Orders, and military agency authorizations of interrogation techniques.  Military investigations have attributed many of the incidents of torture to, in part, confusion over appropriate treatment because of abdication of the existing interrogation regime in Army Field Manual 34-52, Intelligence Interrogation, and the proliferation of varied legal opinions.  Will you as Attorney General order the revocation of all such OLC-generated memoranda and reaffirm FM 34-52 as defining the limits of United States’ interrogation techniques and the applicability of the Geneva Conventions to all detainees, thereby bringing clarity and removing any ambiguity for interrogators in the theater of operations, be it at Guantanamo, Afghanistan, Iraq, or elsewhere?

Sessions is making much of the fact that many detainees freed from Gunatanamo returned to terrorist endeavors.  But this doesn't mean the Geneva Conventions should not apply.

Gonzales trumpets the review processes at Guantanamo but disclaim White House responsibility on detianees, ready to attribute everything to DOD and CIA.

Enough. Since the President asserted the inherent power to classify and detain persons as enemy combatants without any judicial review, it has come to light that perhaps hundreds of these individuals bear no more guilt than having lived in Afghanistan and owning the Quran.  Rather than impede the fight against terrorism, the proper involvement of courts would insert the branch of government that is most qualified to make determinations of dangerousness, guilt and innocence.

The negative security effects of the ongoing policy have become evident.  Of the hundreds of detainees held at Guantanamo Bay, the majority have little or no intelligence value and constitute no threat to the United States.  See, e.g., John Mintz, “Most at Guantanamo to Be Freed or Sent Home, Officer Says,” Wash. Post., Oct. 6, 2004, at A16.  Some military analysts suggest that the indefinite detention of those held at Guantanamo functions as a stand-in fundamentalist madrassa fanning the flames of anti-U.S. sentiment and breeding terrorists who did not previously hold violent anti-American views.  See, e.g., Phillip Carter, “To Fight Another Day: The Real Reason Guantanamo Detainees Have Returned to the Battlefield,” Slate, Oct. 25, 2004, available at http://slate.msn.com/id/2108634/#ContinueArticle

The Pentagon has admittedly acknowledged that several detainees who were released from Guantanamo Bay have rejoined terrorist and military efforts against the United States and its allies.  Matt Moore and John J. Lumpkin, “Some Detainees said returning to Terror,” Associated Press, Oct. 17, 2004.  Senator Session is accurate with respect to this point. But these reports evince the insufficient process and criteria that the U.S. military, CIA and other agencies have employed in determining who is an enemy combatant and may be brought to and released from Guantanamo Bay.  The recent release of Yaser Hamdi also belies the assertions of how dangerous a threat certain enemy combatants may pose.  We need courts and Article V hearings as required by the GCs and military policy.

Judicial review of all cases will hold the Executive accountable and better ensure the proper people are detained and released..

Cornyn is trying to make hay of the fact that the March 19, 2004 Goldsmith memo to Gonzales was a draft

It's hardly clear why Cornyn is trying to defend this memo - it too is in disrepute and the policy of ghost detainees has been condemned by army generals

Hey Senate staffers - how about asking some of these questions from HRF's report on Gonzales?  Let's not let Gonzales get a free pass.  He needs to really answer these questions

1.      If the Administration’s overarching goal was to not have Taliban or Al Qaeda treated across the board as prisoners of war, couldn’t that have been accomplished in a more focused manner, through individualized Article 5 status review hearings – something that Secretary Powell had proposed, as you note in your January 25 memo?  Do you still believe it was necessary to broadly repudiate the Geneva Conventions’ applicability to those captured in Afghanistan?  What would have been wrong with individual hearings to determine whether POW status was appropriate – as had been done in numerous earlier conflicts?

2.      You spent a considerable portion of your January 25 memo noting how the conclusion that the Geneva Conventions did not apply to al Qaeda or the Taliban “substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).”  Could you explain why you were so concerned about application of a provision enacted in 1996 by the Congress to cover “grave breaches” of the Geneva Conventions?  What did you mean there by the “needs and circumstances that could arise in the course of the war on terrorism” – would those be a justification for excusing any punishment for the most serious violations of the Conventions?

3.      Your memo, while disavowing application of the Third Geneva Convention to Taliban detainees, apparently tries to provide some reassurance about U.S. treatment of detainees more broadly – saying that the U.S. will still be “constrained” by applicable military regulations as well as “applicable treaty obligations”.  Which obligations does this include?  The Fourth Geneva Convention?  Common Article 3?  The Convention Against Torture?  The International Covenant on Civil and Political Rights?  Could you elaborate on what you meant there, as well as by “minimum standards of treatment universally recognized by the nations of the world”? 

4.  You close your memo by noting that “our military remains bound to apply the principles of GPW [the Third Geneva Convention] because that is what you have directed them to do.”  What “principles” were you referring to here?  Wouldn’t you concede that a decision to explicitly not apply the Conventions to detainees from Afghanistan might at least create some confusion about whether its “principles” nevertheless applied?

5. Late last year, you requested that the Justice Department’s Office of Legal Counsel prepare a memorandum on the applicability of Article 49 of the Fourth Geneva Convention – and specifically whether that provision barred the removal of certain detainees from Iraq to other locations.  As you know, concerns have been raised – including by Army Maj. Gen. Taguba in his report on Abu Ghraib – about the policy of holding so-called “ghost detainees” in secret locations, and denying the Red Cross access to them.  On October 24 the Washington Post reported that a U.S. intelligence official said that the CIA has used the Justice Department’s memo “as legal support for secretly transporting as many as a dozen detainees out of Iraq in the last six months” – concealing them from the Red Cross and others.  Can you discuss the rationale for asking OLC for that memorandum – what was the reason their advice was sought at that time?  And how was that advice utilized?

6. Do you agree with the legal analysis in the memorandum that Assistant Attorney General Jack Goldsmith sent to you in March of this year on Article 49?  How does it square with the explicit language of that provision indicating that transfers from occupied territory to any other country “are prohibited, regardless of their motive”?  In light of the concerns raised by Maj. Gen. Taguba and many others about a program of secretly transferring “ghost detainees” from Iraq, would you now be prepared to reevaluate the conclusions reached in that March 19 memo?

7. Do you support the 9/11 Commission’s recommendation that all U.S. Armed Forces and other government agencies engaged in detention and interrogation should observe Geneva Convention protections for all combatants and civilians?  Do you support the further recommendation that the United States should publicly affirm our binding obligation to prohibit violence, cruel treatment, torture, or any other outrages upon personal dignity, including humiliating and degrading treatment, of those in U.S. custody – citing the language of Geneva Common Article 3?

Let's go back to this argument which the 8/1/02 memo discusses in great detail, arguing that the necessity of stopping terrorist attcks, i.e., the ticking bomb scenario scenario, would justify torture.

The Israeli High Court dealt with this adroitly and the memo never mentions it.  The Israelis have of course faced a far more pervasive and ongoing terrorist threat.  Yet the Court ruled that techniques including shaking, and stress and duress positions were unlawful:

"Necessity is an after-the-fact judgment based on a narrow set of considerations in which we are concerned with the immediate consequences, not far-reaching and long-range consequences, on the basis of a clearly established order of priorities of both means and ultimate values...The defence of Necessity does not define a code of primary normative behaviour. Necessity is certainly not a basis for establishing a broad detailed code of behaviour such as how one should go about conducting intelligence interrogations in security matters, when one may or may not use force, how much force may be used and the like (Enker, "The Use of Physical Force in Interrogations and the Necessity Defense," in Israel and International Human Rights Law: The Issue of Torture 61,62 (1995)).

See http://www.btselem.org/english/Torture/HCJ_Ruling_Part2.asp

Gonzales states he has no knowldge of the President having issued orders on any specific techniques;  Gonzales says all he knows is that the President ordered that no one commit torture.

That is all he knows?  What was he doing as White House Counsel?  This is simply not credible.

Kennedy asks about the matter of GHOST DETAINEES and questions about the OLC memo written to Gonzales on 3/19/04 authorizing the removal of persons from Iraq.

Gonzales says he has not reviewed the memo in some time.  He say there was a concern that a haven might be created in Iraq for al Qaeda.  He says he has no knowledge about what the CIA and DOD is doing.

But the memo was sent to generals counsel of CIA and DOD!

Kennedy also notes that the memo does not refer to al Qaeda but protected persons.

Gonzales says he would like the opportunity to review the memo. Gonzales says he does not remember why the CIA requested the memo.

Again Gonzales declined to say whether he had any personal opinion about the opinion.

I paste here a portion of HRF's analysis on this matter:

The March 19 Goldsmith memorandum stated that it was elaborating on October 2003 “interim guidance” about the permissibility under the Fourth Convention of such relocation of “protected persons.”  The Goldsmith memo concluded that the United States would be acting consistently with Article 49 were it to remove one set of “protected persons” – illegal aliens – from Iraq pursuant to local immigration law, and that in addition it could relocate both illegal aliens and other “protected persons” from Iraq to another country to “facilitate interrogation” – as long as (1) that was for a “brief but not indefinite period”, and (2) adjudicative proceedings had not been brought against such individuals.

Goldsmith’s memo to Gonzales sheds light on his involvement in the “ghost detainee” program of secret detentions, described by Army Maj. Gen. Antonio Taguba in his report as “deceptive, contrary to Army doctrine and in violation of international law.”  The Washington Post has reported that Judge Gonzales asked the Office of Legal Counsel in October 2003 to address the legality of the removal of at least one detainee, Hiwa Abdul Rahman Rashul (known as “Triple X” by government officials).  Unhappy with the narrowness of that opinion, the CIA then urged Gonzales to obtain a broader legal opinion that would expand the number of people who could be moved secretly out of Iraq. The March 2004 Goldsmith memorandum followed.

The Goldsmith memorandum argues that the Fourth Convention, which the U.S. ratified and became the law of the United States in 1955, does not prohibit the removal of “protected persons” who are illegal aliens.  Article 49 of the Fourth Convention, however clearly states: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”  The Goldsmith memorandum goes to great lengths to deprive the article of any substantive meaning, contending that the provision only contemplates the deportation of inhabitants.  Yet the International Committee of the Red Cross – the authoritative commentator on the Convention – views the prohibition is absolute and allowing for no exceptions.

The Goldsmith memorandum also argues that any protected person under the Convention, whether an Iraqi or not, may be transferred out of the country, so long as the military has not accused the individual of wrongdoing.  Article 76 of the Fourth Convention provides that “protected persons accused of offenses shall be detained in the occupied country.”  The Goldsmith memorandum tries to evade this prohibition by concluding that the United States may remove a person from Iraq where the intent is only to interrogate that person for something short of an “indefinite” period – an approach that permits the U.S. military to simply designate all protected persons for interrogation and remove them from Iraq, and out of the sight of the ICRC, and any accountability. 

Finally, the Goldsmith memorandum also ignores numerous provisions in the Fourth Convention and U.S. military regulations requiring a system that ensures an accounting of the detainees, including a system to notify families of those interned of the fact of their internment, their address, their state of health, and of changes to their condition.  This applies to both combatant and civilian internees of any legal status, and applies both during international armed conflict and during periods of occupation.  As both U.S. military and ICRC reports have made clear, the United States has failed to meet its obligations in this respect.

Kennedy asks again about the new 12/30/04 memo. Did you object to the 8/1/02 memo during the two years it was the Admin's policy?

Gonzales says it was ultimately the call of DOJ to what the law was. He refuses to say what he thought, suggesting it didn't matter.  But he was the President's legal adviser.  This is a refusal to take any personal responsibility whatsoever.

Gonzales again insists the President never exercised the authority promoted in the 8/1/02 memo. Gonzales states that whether or not the President has the authority to order conduct prohibitted in criminal statute is a matter to be taken very seriously.

Kennedy asks what Gonzales thinks of the necessity defense put forth in the 8/1/02 memo.

Gonzales states he does not recall what he felt on this matter.  He says that he does recall thinking this was an arguable defense.

Gonzales does not go into any detail on the necessity defense, addressing issues of defining "severe pain" instead.

You can't apply the necessity defense argument ab initio; it can't be policy.  That is without any reasonabvle legal basis.  The Israeli High Court addresses ths quite well.

In addition the 8/1/02 memo acknowledges that “[t]he [necessity] defense is available ‘only in situations wherein the legislature has not itself, in its criminal statute[s], made a determination of values.”  The memo claims that “Congress has not explicitly made a determination of values vis-à-vis torture.”  But of course Congress has made such a determination of values; Congress ratified the Convention against Torture and passed the federal statute banning torture.  Significantly, article 2 of the Convention against Torture states, in relevant part: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”  The Convention against Torture is the supreme law of the land, and as such should be viewed as explicitly precluding any recourse to a necessity defense.

Graham - did you think some of the interrogation techniques under analysis for the Working Group and the August 1 2002 memo might presnet grounds for courts-martial of US personnel?

Gonzales again disclaims having been involved in the Working Group and that he did not see any memo by military lawyers questiong the interrogation techniques.

Graham - As I understand it you now say you disgareed with the reasoning of the 8/1/02 memo which launched the DOD Working Group Report which recommended 35 interrogation technques.  Then military lawyers looked at the torture memo which was the underlying basis for all of this, and they rekected this reasoning.  You need to know this.  I want to understand your role in all of this.

When you try to cut quarters it always catches up with you and i think it caight up with us.  I think the new torture memo is a step in the right direction?  Do you?

Gonzales: I don't think we cut quarters.  I think that the attorneys did the best they could.

Graham: Well I think they did a lousy job

Graham: Are you confident the Guantanamo procedures will meet due process?  The world is watching.

Gonzales: There is a wrong perception that as matter of policy the Admin is ignoring its legal obligations

He is still not being pushed on what was his role in all of this.

Durbin: Can US personnel engage in cruel, inhuman or degrading treatment of detainees?

Gonzales: all techniques were presented to the DOJ and found not to violate article 16 of theConvention against Torture and Other Cruel, Inhuman or Degrading Tretament or Punishment;  Gonzales notes that the ressrvation to the Convention against torture and CID stated that CID is defined by the fifth, eighth, and fourteenth amendments

Durbin: I read in the paper today that we rendered someone to a country where they would be tortured. Is that illegal?

Gonzales: That would be unlawful, yes.

So let's follow up on this.  This was done.  How does Gonzales explain that if it is unlawful.  How did this just sit there and not receive further questioning?

Schumer asks: should we seek revisions of the GCs? Anf if we do, should Congress be included in that discussion?

Gonzales: This is a new type of war; The GCs are from 1949.  I am not siuggesting we shuld revisit the basic provisions calling for decent tretament.  But this is something we shuld look further into.  Should the Senate shuld play a role, certainly.

Schumer - yes but would you include the Senate in discussions reformulating the GCS

Gonzales - when I indicate that there has been discussion in the White House, it hasn't been formal, just questions have been asked.  It's always better to consult with the Senate.

There has simply not been any showing that the faithful execution of the Geneva Convention would impair the pursuit of terrorists!  Arguments to that effect are speculative and based on mischarcterizations of the Geneva Conventiosn and thier rules on interrogation and detainee tretament.

Feingold notes that the 12/30/02 rewrite of the 8/1/02 torure memo does not address the power of the President to override a statutory prohibtion.

Feingold notes that there is a great differnce however between choosing not to enforce a law that the President thinks is dubious and the President's authorizing violations of criminal law.  The latter is saying the President is above the law.  This was not a hypothetical.  This is what the 8/1/02 memo sttaed; I want your answer.

Gonzales - The 8/1/02 memo has been withdrawn and relected.  I categorically reject.  This Admin does not condone torture or order tore.

Feingold - Does the President have the power to authorize violations of duly enacted criminal law.

Gonzales - It is impossible to answer that questuion.  there is a presumption f constitutionality for every statute passed by Congress and to the extent the President could order people not to follow the law I would take that matter very seriously. Of course the President is not above the law, but the President may elect to not enforce the law.

Feingold - That is different from affirmatively authorizing a person to violate the law.

Will you commit to informing Congress of such a similar decision instead of waiting two years until a memo is leaked.

Gonzales - I would do so as soon as I can, yes.

Kennedy - The torture memo became part of the DOD policy with respect to treatment of detainees.  This is established in Schlesinger.  You state this was served up by OLC.

Gonzales - that memo has been withdrawn.  It does not reflect the views of the Executive Branch.  The new 12/30/2004 reflects the Executive Branch's views.

Kennedy - But this memo was the policy of the Administration for two years.  There's no question military members bear responsibility and the lack of training was a problem but the Working Group Report was the policy that led to this; this was the DOD policy and given to the CIA, was it not?

Gonzales - I am not sure what the CIA had;  I do not recall who requested the [torture memo].  Let me explain the way this works.  An agency requests a legal opinion and it may work its way up.  I accept responsibility the meme was addressed to me.

Kennedy - Do you accept responsibility that you requested it?

Gonzales - I do not recall that

The memo itself reads that Gonzales requested the memo.

The memo, addressed to Gonzales, begins: "You have asked for our Office's views regarding the standards of conduct under the Convention against Torture . . . as implemented by [the federal torture statute]"

Kennedy - You do not remember a matter of this importance?  You basically initiated this. I would think that you would have recognized that practices such as waterboarding would get awfully close to going across the line.

Gonzales - Of course we had discussions about this.  It's the job of lawyers to decide whether things are lawful and then it's fr policymakers to decide whether it's something they want to do infighting the war on terror.

Kennedy - This is not a new issue.  We have other laws addressing torture - the Torture Victim Protection Act, the War Crimes Act, The Convention against Torture.  In these reports on Guantanamo, what are you going to do as regards the FBI and its involvement with detainee treatment and interrogation. Also has the CIA and DOD been notified the torture memo has been rescinded?

Gonzales - I would assume the agencies have been so notified.  The FBI reports surprise and shock me. I have been down there and had not seen any of this.  I want to make sure the facts are accurate.  There was a report by the FBI referring to an Executive Order authorizing torture and that is just false so I question the accuracy of the reports.

Cornyn brings up Clinton OLC memos - stating that there are appropriate times when the President needn't enforce certain laws

Gonzales - The Executive branch should always look with great care at a law before it decides that law is unconstitutional and should not be followed.  I think people on both sides of the aisle may reach such a decision.

Gonzales - If the GCS had been found to apply to Al Qaeda we would have to provide certain items of comfort that might threaten our soldiers; they would have rights to congregate and talk; to decided how to handle interrogations and strategize their escape; in essence we would provide combat immunity

This is just wrong and disingenuous;  the ICRC has made it clear in its interpretation of the GCs that there is a lot more flexibility; not every member of al Qaeda need be found a POW, but there has to be a tribunal which determines this; the federal district of the district of columbia said this much in Hamdan v. Rumsfeld

First off, it should be clear that international humanitarian law does not prohibit interrogation and intelligence gathering. The Geneva Conventions and customary international law do, however, require the humane treatment of all detainees.  Torture and cruel, inhuman or degrading treatment or punishment are absolutely prohibited by both international laws and U.S. laws.  No national security exception is permitted.

Second, foreign nationals captured during hostilities who pose a threat to security and are not POWS may be detained without criminal charge.  Provided there is biannual review, detention may continue so long as the individual remains a threat and hostilities have not ended.  Once the conflict ends, the individuals may be released, prosecuted or sentenced.

See the ICRC response to Schlesinger:

http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/575E02112A2CA3DAC1256F09004B16F7

Do you think the President can suspend the law on torture and immunize tortures.  I think the law is clear.  No.  But your answer shows you disagree.  You say only that the President has not done so.  I think this is something we need to understand, this is so fundmanetal, and would set in motion a lot of other things.

This goes back to Nuremberg, allowing people to say simply "We were just following orderes?"

I'll ask you again:  Can the President immunize those who comitt torture from prosecution by ordering it?

Gonzales:  i will take an oath of office to defend the laws of this ocuntry and that means the laws passed by the Congress.  I was answering a hypothetical.

Leahy - I am not asking a hypothetocal.  I am asking about the torture sttaute.

Gonzales - That is a hypothetical question.  The President is not going to order torture.  We don't condone it.  That Augsut opinion has nbeen rekected.  It has been reoplaced with an opinion that does not have that discussion.  I am not prepared to give you an answer -

Leahy - That opinion stood for two years;  there was a leak; and a new opinion only emerged a week ago

Let me ask you another question - does the President have the authority to hold an American citizen arrested in the US in incommunicado detention?

Gonzales - The Supreme Court said in Hamdi that the President has the authority to hold a person for the duration of the hostilities

Leahy - does the President have the authority to hold an American citizen in indefinite incommunicado detention?

Gonzales - Hamdi had access to the courts, such good access that his case was heard by the highest court in the land.  As a lawyer I have great conmcerns about not providing lawyers to American citizens.  On the other hand there is the idea that this person has information that can save lives -

Leahy - back to the 50 page Bybee torture memo; it refers to health care administrative law five times but never once mentions the army field manual, which makes clear the US policy ahianst the use of torture and inhumane treatment.  Do you think that is at all troubling?

Gonzales - The OLC mission was to analyze the federal anti-torture sttaute.  It does not mean there are not other legal prohibitions;  The fact that there are other laws does not excuse them from following other laws

We'll have further comments on this later

The hearings should resume shortly - please stay tuned;

Witnesses scheduled to testify tomorrow are:

Admiral John D. Hutson (Ret. USN)
President and Dean, Franklin Pierce Law Center
Concord, NH

Mr. Harold Hongju Koh
Dean, Yale Law School
New Haven, CT

Mr. Douglas A. Johnson
Executive Director, Center of Victims of Torture
Minneapolis, MN

On the subject of the propriety of the torture memo as authored by OLC staff, take note of the guidelines on OLC interpretation as drafted by 19 former OLC attorneys, issued 12/21/2004:

It is incumbent upon the Attorney General and the President to ensure that OLC’s advice is sought on important and close legal questions and that the advice given reflects the best executive branch traditions.

When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

OLC must provide advice based on its best understanding of what the law requires. OLC should not simply provide an advocate’s best defense of contemplated action that OLC actually believes is best viewed as unlawful. To do so would deprive the President and other executive branch decisionmakers of critical information and, worse, mislead them regarding the legality of contemplated action. OLC’s tradition of principled legal analysis and adherence to the rule of law thus is constitutionally grounded and also best serves the interests of both the public and the presidency, even though OLC at times will determine that the law precludes an action that a President strongly desires to take.

See http://www.acslaw.org/OLCGuidelinesMemo.pdf for the whole text

The Senators are letting Gonzales have lunch...

Durbin is asking questions.  He by the way distinguished himslef by introducing into the Defense Authrization Act legislation opposing torture and other cruel, inhuman or degrading tretament:

See The Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, Sec. 1091(b)(4), 118 Stat. 1811, 2069 (2004) (amending 10 U.S.C. Sec. 801) passed in October, stating in relevant part:"It is the policy of the United States to--
(1) ensure that no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States;
(2) investigate and prosecute, as appropriate, all alleged instances of unlawful treatment of detainees in a manner consistent with the international obligations, laws, or policies of the United States;
(3) ensure that all personnel of the United States Government understand their obligations in both wartime and peacetime to comply with the legal prohibitions against torture, cruel, inhuman, or degrading treatment of detainees in the custody of the United States;
(4) ensure that, in a case in which there is doubt as to whether a detainee is entitled to prisoner of war status under the Geneva Conventions, such detainee receives the protections accorded to prisoners of war until the detainee's status is determined by a competent tribunal; and
(5) expeditiously process and, if appropriate, prosecute detainees in the custody of the United States, including those in the custody of the United States Armed Forces at Guantanamo Bay, Cuba.

Durbin asks: Can US personnel engage in torture or cruel, inhuman or degrading treatment of detainees?

Gonzales - absolutely not

Durbin asks if the war crimes act might apply to US personnel

Gonzales says he would like some time to give an answer to that (He did argue in his 1/25/02 memo that if the GCS did not apply then the war crimes act couldn't apply)

Gonzales again states that he thinks it is possible that the President could decide to refuse to comply with laws passed by Congress; but he stresses this a hypothetical

No it's not.  The 8/1/2002 memo argues this and Gonzales endorsed this view with respect to the torture statue for over two years

Durbin invokes Youngstown, a key Sup Ct that ruled the President could not act in direct opposition to Congressional statutes.

Gonzales now says he understands that and even invokes the recent Hamdi decision which slammed the Administration'e assertion of unreviewable power - "a state of war is not a blank check for the president" Quite ironic for Gonzales to be quoting the Hamdi decision.!

Just to be clear - a while back Gonzales stated, as has the Administration sttaed numerous times, the GCs apply to Iraq.

But to be more specific than in an earlier posting, Gonzales requested that the DOG prepare a memo answering if Art 49 of 4th Geneva Convention (prohibits transfers of "proteced persons from occupied territory) applied in Iraq. A March 19, 2004 DOJ Memo responded stating that the 4th Convention does not prohibit the removal of "protected persons" who are illegal aliens under local Iraqi immigration law. This is contrary to the ICRC (the authoritative commentator on the Convetion) position that the 4th Geneva Convetion prohibition of transporting protected persons from occupied territory is absolute and no exceptions.

Cornyn - Lawyers disagree from time to time, even on inferences from facts.

Senator Biden questioned my assertion of the facts - specifically that the 9/11 Commission said the GCs did not apply in the war on terrorism; that the Schlesinger Report agreed with this view as well and that the ICRC supported this position too.

The Schlesinger Report did indeed state on page 81: "The Panel accepts the proposition that these terrorists are not combatants entitled to the protections of Geneva Convention III. Furthermore, the Panel accepts the conclusion the Geneva Convention IV and the provisions of domestic criminal law are not sufficiently robust and adequate to provide for the appropriate detention of captured terrorists."

The ICRC, contrary to what Cornyn depicts, however, stated in direct response to the Schlesinger Report:

1. Geneva Convention III and the relevant U.S. Army Regulations call for status determinations by a "competent tribunal" precisely to determine whether a person, having committed a belligerent act and having fallen into the hands of the enemy in the frame of an international armed conflict, meets the criteria for prisoner of war status. Thus, one cannot conclude that a detainee is not entitled to the protections of the Third Convention without first following the procedures set out in the Convention for making such a determination. See also II.E above.

2. The ICRC is concerned about the suggestion that Geneva Convention IV may be ignored because it is "not sufficiently robust". Geneva Convention IV explicitly acknowledges the existence of circumstances under which persons who fall within its terms may be deprived of their liberty. Such persons may be interned for imperative security reasons and for as long as these imperative reasons exist. They may be charged with criminal conduct, tried, convicted, and sentenced (to terms beyond the end of the conflict and even to death under certain conditions). They should be prosecuted for war crimes, that is, serious violations of the laws and customs of war. They can also be prosecuted for unlawful participation in hostilities (and therefore be called "unlawful combatants", although this terminology is not used in IHL), but such prosecution does not entail their exclusion from the protection of Geneva Convention IV. Geneva Convention IV does not contain any prohibition of interrogation. Furthermore, the Panel's suggestion that because Geneva Convention IV would not be "sufficiently robust" it could be waived by decision of individual State parties is a dangerous premise. To accept this argument would mean creating an exception that risks undermining all the humanitarian protections of the law. (see http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/575E02112A2CA3DAC1256F09004B16F7)

As for the 9/11 Commission viewpoint, Cornyn does not mention that the Commission recommended that the Adminstration and its allies apply the principles of Common Article 3 of the GCs, something the Administration has previoulsy repudiated, arguin that Common Article 3 did not apply. (See January 2002 memoranda by John Yoo)

The Commission's psecific recommnedation, by the way, stated:

The United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict.  That article was specifically designed for those cases in which the usual laws of war did not apply. Its minimum standards are generally accepted throughout the world as customary international law (380).

Cornyn states that all memos have been supplied by the White House except for two!

Feingold follows up on the OLC torture memo questions...

You are the President's lawyer - isn't it your job as the President's lawyer to give him your opinion on the memo?

Gonzales: It is customary that the DOJ and the White House Counsel discuss a sensitive and important area of law; I certainly do give the President my own opinions but mine are often informed by the DOJ

What does that mean?  So he did endorse the memo!  He didn't have any opinion of his own; he would just follow what the DOJ said then.  This is a man far too easily influenced.

Feingold asks of clemency memos he wrote when the President was Texas governor

Graham ststes that Abu Ghraib has hurt the US in the war on terrorism as has he gulag at Guantanamo.

Graham mentions that in the last twenty years he has been a judge advocate general advising on the laws of war.  Every soldier fears capture by the enemy.

Graham agrees that the GCs should not apply to al Qaeda, but he sttaes that Powell might have had the more correct view.

The GCs are not niceties and not using torture does not weaken the US.

The torture memo of 8/1/02 memo was entirely wrong in its focus; it excluded anlaysis of the Uniform Code of Military Justice; he has asked for memos written by military on this; those memos suggest that going down the road articulated in the torture memo puts our troops in jeopardy

He asks Gonzales to reject the reasoning of that memo.

Gonzales: We are nothing like our enemy; we are not beheading people

Graham : We are not like who we have been; we are losing the moral high ground; we have lost our way; The challenge to you is to help us find our way.

Also on Guantanamo Bay there is legal chaos down there

Gonzales: It is correct that the Supreme Court disagreed with Admin's position in Rasul; We have created a process by which people can find out why they have been detained and how they can challenge thier detention.

If this is a reference solely to the Combatant Status Review Tribunals, it does not satisfy the Supreme Court. Moreover, the position of the Administration really has not changed since before Rasul

The Bush Administration’s response to the Rasul has been, in the words of one of the detainees’ lawyer, “akin to the actions taken decades ago by several states in massive resistance to the Supreme Court’s desegregation ruling in Brown v. Board of Education.”  Petitioners’ Reply at 2, Al Odah, et al., v. United States (No. CV 02-0828) (CKK), available at http://pegc.no-ip.info/archive/Al_Odah_vs_US/al_odah_response_20041020.pdf (accessed Nov. 11, 2004).  Since the Rasul decision the U.S. government has sought to dismiss all habeas petitions, monitor attorney-client communications, deny detainees any rights to assert in court, demand that courts defer to all government actions, and refuse to address the merits of the various detainee-petitioners’ claims despite the Supreme Court’s express order to do so.  Meanwhile the detainees’ access to their lawyers has been severely limited and reports continue to emerge of abuse of detainees and solitary confinement causing severely debilitating psychological effects. 

Gonxzales would not answer whether ignoring the UCMJ endangered the US troops

Gonzales continually argues that the 8/1/02 memo was that of the DOJ, not his product, but that he agreed with the opinion at the time.  Gonzales can disclaim responsibility all he wants but come on, he had a role in crafting this, he was an adviser to the President, the legal adviser to the President, and he endorsed this view, the view that defined torture as only that conduct which would cause pain equivalent in intensity to organ failure or death ands that the President could override statutory prohibitions against torture!

Sessions states that he doesn’t think Democrat or Republican would think al Qaeda was anything but an unlawful combatant

Gonzales agrees with that and that in just reading the GCs they couldn’t apply to al Qaeda, because they were not a signatory to the Conventions. 

Sessions invokes Ex parte Quirin as support for this.  Of course the whole matter of the Quirin decision is something different – for one the Nazi saboteurs admitted to being enemy belligerents, but more important we respected the GCs - in fact these guys were given a trial - a military trial.  It is admittedly still a sad precedent but this was done during a declared war and followed the law. 

Secretary of State Powell added a number of reasons why the GCs should apply back in early 2002.  This advice was ignored.  The decorated four star general and former chairman of the joint chiefs of staff arguments inlcuded:

• The Geneva Conventions were intended to cover all types of conflicts

• Geneva Conventions are a more flexible and suitable legal framework than other laws arguably applicable; preserves flexibility under both domestic and international law

• The US could hold individual hearings for Al Qaeda and Taliban before a military board to determine whether POW status was appropriate

• Applying the Geneva Conventions presents a positive international posture, preserves US credibility and moral authority and places us in a better position to demand and receive international support

• Applying the Geneva Conventions reduces incentive for international criminal investigations against U.S. officials and troops

• The US has never denied the applicability of the Geneva Conventions to US or opposing forces even if arguments could be made that the threshold standards for the applicability were not met

• The US could not invoke the Geneva Conventions if enemy forces mistreated US or coalition forces captured during operations in Afghanistan or if they denied ICRC access

• Not applying the Geneva Conventions will provoke widespread condemnation among allies

• Not applying the Geneva Conventions in Afghanistan may encourage other countries to look for technical loopholes in future conflicts to avoid obligations under Geneva

• Other countries may be less inclined to turn over terrorists or provide assistance to us if we do not recognize Geneva obligations

• Deciding not to apply Geneva to Al Qaeda and the Taliban could undermine US military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in status of adversaries

• Common Article 3 was always applied, even in Panama in 1989

This all comes from the memo by Powell posted to the left.

Gonzales disagreed with all of this.

Biden points out that the President does not know ____ from shinola about the GCs; that he doesn't judge the President; that's why he hires lawyers.

Biden states this is not about his competence or integrity but his judgment!  So Gonzales is obliged to let us know where he stands on these issues.

Personal aside: We might indeed recall that the Israeli Supreme Court stated in ruling against the legality of interrogation methods including shaking and stress and duress that "we must act according to our purest conscience when we decide the law..."  Let's hope Gonzales might follow in the same vein....

Biden reminds Gonzales that as the "Man for All Seasons" reminds us - we give the devil the benefit of the law...

Biden invokes Powell's criticism of Gonzales' position on lifting the GCs - that it endangers US troops and that the top JAG had stated these newly approved interrogation methods went well beyond what had been authorized under military doctrine.  Unfortunately Biden never really asked a question in his allotted ten minutes, but Gonzales is given an opportunity to respond.

Gonzales acknowldges there was great deal of debate over the judgemnt to apply the GCs.

But Biden wants to know why Gonzales took a view in opposition to Powell and other military members.

We should hear more in the next line of questioning from Biden...

Kennedy cites the 6/27/2004 Washingtn Post article discussing that the CIA requested Gonzales get legal authority for interrogation techniques includ9ing waterboarding and live burial.

Gonzales hasthe temerity to say he doesn't recall exactly!

He explains that post-9/11 people realized new steps might need to be taken but that they wanted to know if certain steps were in fact legal.

Kennedy asks if Gonzales directed the OLC to lean forward in construing the legal rules on interrogation.  What was your role in talking with them of the drafting of the memo?

These were difficult statutes never before interpreted...

Kennedy asks for various memos that have never been released and that the Administration has not been forthcoming.  He rightly points out that this is not something limited to Abu Ghraib.

He rightly points out that the 8/1/02 torture memo was left in place as policy for two years, never repudiated, and that the torture memo was then lifted and place word for word in various places in the DOD Working Group Report.  Check out the HRF Report to the left for detailing precisely this policy promulgation process that Kennedy is outlining.

Leahy makes clear that the Bybee memo (the torture memo of 8/1/02) was written at Gonzales' request.

In August 2002 did you agree with Bybee's interpretation of the torture statute?

Gonzales explains he wants to give a little context; the federal statute 18 USC 2340-2340A, had never been addressed by a court.  He says it was the DOJ's responsibility to define that statute for him.

Leahy asks if Gonzales agreed today with the definition out forth in that memo.  Gonzales says no, but explains that it was not his place to contradict the interpretation by the OLC (Office of Legal Counsel).

Leahy - does Gonzales think the President has the commander-in-chief power to override congresional prohibitions against torture and immunize persons from prosecution?  Do you agree with that conclusion?

Gonzales states that there may come a time when Congress may pass a statute that the president thinks is unconstitutional; obvioulsy such a decision would be a serious one.

But Leahy asks if Gonzales thinks the President has the power to override the torture statute?  Gonzales refuses to answer, claiming it remains hypothetical - But of course this is not a hypothetical argument;  Gonzales says that the President has said we don't torture;  But that is not a helpful explanation whatsoever; moreover the Bybee memo was existing policy for two years.

Leahy asks if he thinks there was any connection between the policies he helped write and promote and the abuses witnessed at Abu Gharib.

Gonzales states that he has condemned such actions and that there have been eight reports on the abuse in detention facilities.  He acknowledges that interrogators were confused about what was the existing interrogation policy.

That's no small admission and should be focused on more assiduously!

Ten minute rounds for each Senator.  Specter states that while photos may be used he wants Senators to be sensitive with what they display since the hearings are televised and children are in the room.  ?????

Specter - Do you approve of torture

Gonzales - absolutely not

Specter - Do you condemn the techniques used at Abu Gharib

Gonzales - He states he was offended but as the potential AG he says that he cannot say whether the conduct was criminal because he doesn't want to prejudge.

Specter - do you condemn the techniques at Guantanamo?

Gonzales - He states it depends on which techniques he means; but obviously he does condemn some.

Specter says undoubtedly more will get into that but that he wants to focus on the Patriot Act and the war on terrorism.

Specter - To what extent has the Patriot Act and the new ruling with respect to the "wall" - purported to enable sharing of more information between intelligence and law enforcement?

Gonzales disclaims any substantive or initimate knowledge of this area but that he understands the provisins to have been helpful in thwarting terrorism.

Specter asks about section 215 of the Patriot Act - which permits the FBI to get access to library records, whether he thinks this is appropriate.

Gonzales states he thinks it is useful and that it doesn't specify library records, but rather states business records.

This nonstarting point aside,for over two years now Congress has sought information on how often the FBI has sought to use powers granted under Section 215 obtain secret orders requiring the production of any tangible item regardless of the business or individual holding the item and based solely on the assertion that it is needed for a terrorism investigation or is needed to obtain foreign intelligence.  The DOJ stated that it had never been used – this is a power the government claimed was absolutely necessary.  But then under court order, a legal memo from DOJ revealed that a month after the DOJ statement the FBI did seek such powers.  There is a real problem with Congressional oversight and accountability. Gonzales did not address this at all.

John Cornyn, as the Senator of Texas and hence Mr. Gonzales' Senator, introduces him to the Committee.

After regaling the committee with Gonzales' life story (a truly great tale of rising from little to much, it is true) Cornyn then takes great issue with those criticizing Gonzales for his stand on the Geneva Conventions and their applicability to al Qaeda, stating that Gonzales' position is absolutely correct.  But his arguments miss the point arguing that because al Qaeda would not meet the POW standards articulated in the Geneva Convention, art. 4, the Geneva Conventions do not apply.  That absolutely misses the point.  First, it is not for the President to determine that an individual member of al Qaeda is not a POW.  A tribunal must be had to determine that individual's status.  Second, even if then that person is not found to be a POW he may still be protected by the Fourth Convention and also by customary international law, as exemplified in article 75 of Protocol 1. Common article 3 also always applies as a minimum source of protection for detainees.

We will undoubtedly get into this later, but let's not forget a US federal district court already decided that it was not for the President to make this across the board determination but must be made by a competent tribunal.  This is reflected not only in the Geneva Convention but also Army Regulation 190-8.

Then Cornyn argues that Gonzales bears no responsibility for the August 1, 2002 memo on torture or the events at Abu Ghraib because he didn't write that memo.  But he requested the memo, and disseminated it.  Moreover, Gonzales analysis was found imitated and reflected in later memos by those high up in the Defense Department (See Working Group Report (4/4/03) and by military commanders on the ground in Iraq.

Cornyn then asks for the confirmation of Gonzales.

Then introductory comments from the new Democrat Senator from Colorado Ken Salazar.

Gonzales takes the oath to tell the whole truth...

Senator Arlen Specter, the new chairman of the Senate Judiciary Committee, states in his opening remarks that the committee plans to engage Gonzales in a dialogue on his January 25, 2002 memo, concerning his arguments that the "war on terrorism" warranted a new paradign, rendering the Geneva Conventions obsolete.  Let's hope so.  It's a discussion long in coming with great ramifications for both detainees in the custody of the United States and U.S. soldiers the world over.

Hatch also offers some pleasantries as the former chairman of the committee.

Senator Patrick Leahy, the ranking minority member, made a point of reminding Gonzales that his first loyalty must not be to the President but to the United States.  He notes that in this time when chacks and balances are threatened, the Attorney General must be forceful and independent, not simply a facilitator for policy agendas.  He criticized the Ashcroft record on the rule of law with respect to fighting terrorism and his in frequent visits before the Senate judiciary committee, as well as his denunciation of those who criticize Administration policies.

Leahy expressed concern over the secret creation of various memos offering strict parsing of the torture statute to the point of menainglessness.  Leahy cautioned that this hearing was also about accountability and that the instances of torture and abuse at Abu Gharib and Guantanamo were not simply the actions of a few bad apples, but had its origins in the high echelons of the Administration.

Leahy invoked the Army Field manual, and its stated goal of obtaining reliable information through interrogation, prohibitting the use of torture because it was wrong, elicited unreliable information, and endangered U.S. troops.

Leahy noted that Rumsfeld, Sanchez, and Tenet all requested methods of treatment of detainees violating military doctrine, international law and U.S. law. (See HRF Report posted to the left for greater details).

Leahy noted the presence of torture victims in the hearing audience and their expectations for clarity on the country's position on torture.

The Associated Press has released the text of remarks by Attorney General nominee Alberto Gonzales, as prepared for delivery to the Senate Judiciary Committee for January 6, 2004. (See the link for the full text http://www.myrtlebeachonline.com/mld/myrtlebeachonline/news/politics/10574225.htm)

Gonzales states: "After the attacks of 9/11, our government had fundamental decisions to make concerning how to apply treaties and U.S. law to an enemy that does not wear a uniform, owes no allegiance to any country, is not a party to any treaties and - most importantly - does not fight according to the laws of war. As we have debated these questions, the president has made clear that he is prepared to protect and defend the Untied States and its citizens, and will do so vigorously, but always in a manner consistent with our nation's values and applicable law, including our treaty obligations. I pledge that, if I am confirmed as attorney general, I will abide by those commitments." (my emphasis)

Gonzales' pledge sounds good.  Of course he says he will defend the U.S. consistent with law and treaty.  What kind of Attorney General nominee would say otherwise? But note his embedded caveats:  "applicable law, including our treaty obligations?"  This sure gives him a lot of leeway.  As his memo on the applicability of the Geneva Conventions has made clear, he doesn't believe those laws of war apply. (see 1/25/02 memo posted to the left)  His commission and oversight of the August 2002 memorandum on torture indicates he wouldn't likely think that the law against torture applied to many of the harsh interrogation techniques used by U.S. personnel in Guantanamo, Afghanistan and Iraq. (see 8/1/02 memo posted to the left)  His statement begs the question: to what commitments does Gonzales pledge to abide?  It's not enough to say you will follow the law; we need to know what in fact Gonzales thinks is the law.

Greetings - the Gonzales hearings are about to get underway.  I am eager to hear what Mr. Gonzales has to say on many of the positions he has taken with respect to detainee operations and interrogation practices as well as his views on both the applicability of the Geneva Conventions to terrorists and his interpretation of both the applicability of international laws and treaties such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as what is his interpretation of what constitutes torture under the federal criminal prohibition, 18 USC 2340-2340A.

As the attorney general nominee it is fair to expect Senators to ask tough questions of him; in particular to clarify what he believes is the proper standard of treatment of other human beings as well as his views on the balance of powers between President, Congress and the Courts and the legality and propriety of creating military commissions from whole cloth.

Check back on Jan. 6, 2005, to read Avi Cover's commentaries once the hearings begin at 9:30AM ET.