The Stakes in the Gonzales Nomination
The current hearings on the nomination of Alberto Gonzales to be the next Attorney General raise stakes that are far more important than the future career-path of this one little opportunist. What is at stake is the future path of American government: Will we be a Republic in which the rule of law has meaning, or will we be an Empire in which the whim of one man decides all.
It all revolves around a law of the United States, a provision of the Federal criminal code, 18 U.S.C. Section 2340A, which states unambiguously:
"Whoever [being a national of the United States] outside of the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life."
This law does not provide for any exceptions.
In August 2002, Gonzales solicited a memorandum-opinion from the Department of Justice, Office of Legal Counsel, that was clearly intended to provide legal cover to CIA personnel who either had used or intended to use interrogation tactics that could be construed as involving torture. The contents of that memorandum are what makes the current hearings so important.
The first section of the memorandum reaches the somewhat dubious conclusion that notwithstanding the very broad language of the statute, Section 2340A does not reach all forms of "degrading" and "inhumane" conduct that might fall within the common understanding of the term "torture" and instead applies only to "extreme" conduct. While I find this portion of the memorandum unconvincing as a matter of lawyering and somewhat disturbing in its cavalier treatment of the issue of torture, this part of the memorandum pales in comparison with what follows.
The real zinger comes as the end of the memorandum. The final section of the memorandum concludes that even "extreme" conduct that indisputably amounts to "torture" within the meaning of Section 2340A does not violate the law if it is carried out pursuant to the approval or direction of the President. The memorandum concludes that all Federal laws are trumped by the President's position as commander-in-chief of the armed forces; although not clearly spelled-out in the memorandum, this reasoning would also logically apply to all provisions of the Constitution, including the Bill of Rights. Thus, according to the memorandum, the President has the unfettered power to override all Federal laws -- including laws unambiguously prohibiting torture -- if the President unilaterally decides that it is necessary to do so in order to carry out military objectives.
There are no limitations on this principle suggested in the memorandum. Nor is there any reason to believe that the memorandum would draw any distinction between foreign and domestic exercises of Presidential power, so long as the President deems it necessary for the purpose of carrying out the war. Could the President authorize the seizure of property, the ransacking of houses, the taking of hostages, all if deemed necessary for military purposes? The Gonzales memorandum gives no reason to think not.
I hesitated about writing a blog on this subject. Unlike some liberals, I am not disturbed in the least by the prospect of pursuing terrorism as aggressively as possible. As a former prosecutor, I also believe that alarms raised by civil libertarians are often chimerical.
But this is no chimera. The law is the law. Torture is clearly and unambiguously made illegal by the laws of the United States -- as well it should be. Yet, we are now faced with a nominee for the position of the highest legal officer of the United States who has openly espoused the position that those laws -- and all other laws -- can be cast aside on the President's say so.
I harbor no illusions that Gonzales' confirmation can be blocked. His confirmation might not even be such a bad thing; Gonzales will almost certainly be a better Attorney General than Ashcroft.
Nevertheless, the hearings provide a good opportunity to take stock of the state of the nation, and to be very aware of the threats we are facing. It might also be a good time for Mr. Gonzales to do some soul-searching and to give some consideration to the words of Thomas More (as recounted in the play, A Man For All Seasons), a great Roman Catholic lawyer who chose to place a higher value on following the dictates of conscience than on loyalty to the service of his king:
"When the last law was down, and the Devil turned round on you -- where would you hide, the laws all being flat? This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."
It all revolves around a law of the United States, a provision of the Federal criminal code, 18 U.S.C. Section 2340A, which states unambiguously:
"Whoever [being a national of the United States] outside of the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life."
This law does not provide for any exceptions.
In August 2002, Gonzales solicited a memorandum-opinion from the Department of Justice, Office of Legal Counsel, that was clearly intended to provide legal cover to CIA personnel who either had used or intended to use interrogation tactics that could be construed as involving torture. The contents of that memorandum are what makes the current hearings so important.
The first section of the memorandum reaches the somewhat dubious conclusion that notwithstanding the very broad language of the statute, Section 2340A does not reach all forms of "degrading" and "inhumane" conduct that might fall within the common understanding of the term "torture" and instead applies only to "extreme" conduct. While I find this portion of the memorandum unconvincing as a matter of lawyering and somewhat disturbing in its cavalier treatment of the issue of torture, this part of the memorandum pales in comparison with what follows.
The real zinger comes as the end of the memorandum. The final section of the memorandum concludes that even "extreme" conduct that indisputably amounts to "torture" within the meaning of Section 2340A does not violate the law if it is carried out pursuant to the approval or direction of the President. The memorandum concludes that all Federal laws are trumped by the President's position as commander-in-chief of the armed forces; although not clearly spelled-out in the memorandum, this reasoning would also logically apply to all provisions of the Constitution, including the Bill of Rights. Thus, according to the memorandum, the President has the unfettered power to override all Federal laws -- including laws unambiguously prohibiting torture -- if the President unilaterally decides that it is necessary to do so in order to carry out military objectives.
There are no limitations on this principle suggested in the memorandum. Nor is there any reason to believe that the memorandum would draw any distinction between foreign and domestic exercises of Presidential power, so long as the President deems it necessary for the purpose of carrying out the war. Could the President authorize the seizure of property, the ransacking of houses, the taking of hostages, all if deemed necessary for military purposes? The Gonzales memorandum gives no reason to think not.
I hesitated about writing a blog on this subject. Unlike some liberals, I am not disturbed in the least by the prospect of pursuing terrorism as aggressively as possible. As a former prosecutor, I also believe that alarms raised by civil libertarians are often chimerical.
But this is no chimera. The law is the law. Torture is clearly and unambiguously made illegal by the laws of the United States -- as well it should be. Yet, we are now faced with a nominee for the position of the highest legal officer of the United States who has openly espoused the position that those laws -- and all other laws -- can be cast aside on the President's say so.
I harbor no illusions that Gonzales' confirmation can be blocked. His confirmation might not even be such a bad thing; Gonzales will almost certainly be a better Attorney General than Ashcroft.
Nevertheless, the hearings provide a good opportunity to take stock of the state of the nation, and to be very aware of the threats we are facing. It might also be a good time for Mr. Gonzales to do some soul-searching and to give some consideration to the words of Thomas More (as recounted in the play, A Man For All Seasons), a great Roman Catholic lawyer who chose to place a higher value on following the dictates of conscience than on loyalty to the service of his king:
"When the last law was down, and the Devil turned round on you -- where would you hide, the laws all being flat? This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."
posted by democratic core at 1:29 PM
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