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January 6, 2005

The Gonzales Hearing: An Assessment

By Anthony Dworkin

Alberto Gonzales appeared before the Senate Judiciary Committee on Thursday, January 5. As expected, much of the questioning focused on his argument (in a memorandum to the President from January 2002) that the Geneva Conventions did not apply to the U.S. conflict with al-Qaeda and the Taliban, and his role in the production of the so-called "torture memo", drafted by the Justice Department in August 2002.

On the subject of torture, Gonzales opened his testimony with a strong statement that he shared the President's resolve that "torture and abuse will not be tolerated by this administration" and promised that if confirmed he would ensure "the Department of Justice aggressively pursues those responsible for such abhorrent actions." However he refused to be drawn on whether he had agreed at the time with the analysis in the August 2002 memo (since rescinded) that said physical coercion only amounted to torture if the subject experienced severe pain equivalent to that associated with death or organ failure. Gonzales maintained that it had not been his role to second-guess the legal analysis provided by the Office of Legal Counsel of the Department of Justice, which he said had ultimate responsibility "to tell us what the law means."

The most notable aspect of the discussion of this subject was Gonzales' persistent refusal to disavow the argument put forward in the memo that the President could override the federal prohibition on torture as part of his Commander-in-Chief authority. (In the revised legal advice on the subject issued by the Department of Justice last week, discussion of the President's commander-in-chief power was omitted on the grounds that it was "unnecessary" to consider the question since the President has directed that U.S. personnel not engage in torture.)

Gonzales repeatedly dismissed questions about the commander-in-chief power as "hypothetical". Pressed by Senator Kennedy as to whether he believed the President as commander-in-chief could override laws passed by Congress, Gonzales answered: "Whether or not the president has the authority in that circumstance to authorize conduct in violation of a criminal statute is a very, very difficult question, as far as I’m concerned. And I think that any decision relating to this line of reasoning would be one that I would take with a great deal of seriousness because there is a presumption that statutes were in fact constitutional and should be abided by." But Gonzales said that it was theoretically possible that Congress would pass a statute that the President would view as unconstitutional. Asked by Senator Durbin whether in that case he could refuse to comply with it, Gonzales answered, "I guess I would have to say that hypothetically that authority may exist."

On the Geneva Conventions, Gonzales said that he was committed to honouring them "where they apply". "Contrary to reports," he added, "I consider the Geneva Conventions neither obsolete nor quaint." (The words "obsolete" and "quaint" were actually Gonzales' own, from his January 2002 memo outlining the inapplicability of the Geneva Conventions to the war on terrorism.) Nevertheless Gonzales firmly defended the view that the Conventions did not cover the U.S. conflict with al-Qaeda: "I think the decision not to apply Geneva in our conflict with al-Qaeda was absolutely the right decision." Among the reasons that it would have been wrong to apply the Conventions, Gonzales listed the fact that "it would honor and reward bad conduct," that "it would limit our ability to solicit information from detainees," that "it would require us to keep detainees housed together where they could share information," and lastly that "it would mean that they would enjoy combat immunity from prosecutions for certain war crimes."

Gonzales' discussion of this issue was needlessly confusing, because he failed to distinguish between two different concepts: applying the Geneva Conventions, and awarding prisoner of war status to captured enemy fighters. Under international law, the Geneva Conventions apply to armed conflicts between two or more signatory countries (practically every country in the world is a signatory). However, it is well recognized in the Conventions themselves that not all participants in an armed conflict will be entitled to prisoner of war status. That is why the 3rd Geneva Convention explicitly provides a mechanism (the tribunals described in Article 5) for distinguishing between captured belligerents who are entitled to prisoner of war status and those who are not.

If you accept that the war against the Taliban was an international armed conflict between the United States and Afghanistan (a position the White House has conceded, though Gonzales himself initially argued against it) then the Geneva Conventions were applicable to the conflict. However, terrorists taking part in the conflict would not have been entitled to prisoner of war status under the Geneva Conventions, since they were not lawful combatants. It is certainly not the case that they would enjoy immunity from prosecution for war crimes: war crimes are precisely actions that are forbidden to any combatant during armed conflict, and for which anyone engaged in the conflict can be prosecuted. Terrorists would in fact remain liable to prosecution even for attacks on legitimate military targets, since they would not qualify under the Geneva Conventions for the status of lawful combatants.

If they do not qualify as prisoners of war, then what legal rights are terrorists captured during the war in Afghanistan entitled to? This question is the subject of dispute. One school of thought holds that they should be regarded as civilians protected by the 4th Geneva Convention. If so, they could be put on trial for any hostile action against U.S. troops, or held until the end of hostilities if necessary, but could not be subjected to "physical or moral coercion." An opposing school of thought argues that they are not entitled to protection as civilians, but would enjoy certain fundamental guarantees under customary international law -- including the right not to be subjected to torture and humiliating or degrading treatment.

So much for the specific and limited war in Afghanistan that began with the American attack on the country in October 2001 (and arguably ended with the installation of the Karzai government the following summer). But there is a separate question about whether the United States is engaged in some kind of armed conflict with al-Qaeda, above and beyond the Afghan war. In other words, should the "global war on terrorism" be considered as a matter of law as an armed conflict in itself? This claim remains enormously controversial. However if the wider struggle between the United States and al-Qaeda is considered as an armed conflict, as the Bush administration asserts, then it clearly would not fall under the Geneva Conventions since it would not involve two or more countries.

This is what Gonzales was getting at when he said in the hearing that al-Qaeda wasn't a signatory to the Convention, "and therefore it didn't seem to me that...our conflict with al-Qaeda could be covered." Applying the Geneva Conventions to a conflict solely between the United States and al-Qaeda (if such a conflict exists) would be tantamount to giving al-Qaeda the status of a lawful belligerent -- putting it on a par with the armed forces of nation states, which alone are recognized as having the right to conduct military operations under the laws of war.

It's worth making a few observations about this argument. First, even if correct, it would only mean that the Geneva Conventions were not applicable to those U.S. military actions against al-Qaeda that took place outside the context of the war in Afghanistan. That war, and all military actions that took place in connection with it, would remain covered by the Geneva Conventions (though as explained above, terrorist suspects would not qualify for prisoner of war status).

Secondly, even if the Geneva Conventions are not applicable to the "global war on terrorism" outside Afghanistan, this does not mean that terrorist suspects detained in connection with this broader conflict have no rights. It would now be generally accepted that certain basic standards are applicable as a matter of customary law in all armed conflict, no matter how it is characterized -- including the protection from torture and humiliating or degrading treatment.

Finally, an armed conflict between the United States and al-Qaeda (a non-state group based outside America's borders) would present a legal anomaly. It would not be an international armed conflict as conventionally understood -- that is to say, a war between two or more nation states. Yet the claim that enemy fighters can be detained until the end of hostilities as a matter of international law (the claim on which the Guantanamo regime is justified) is a claim that is only meaningful in international armed conflict. The position advanced by Gonzales and other administration lawyers is essentially one that asserts all the prerogatives of an international conflict for the United States, without accepting any of the associated restraints. In this sense, the legal claims underlying the proclaimed war on terrorism appear inconsistent, even self-contradictory. (For more on this admittedly complex subject, see my article "Military Necessity and Due Process: The Place of Human Rights in the War on Terror," forthcoming in Wippman, David and Matthew Evangelista, eds., New Wars, New Laws? (Transnational Publishers, February 2005)).

Beyond the discussion of Gonzales' views on the Geneva Conventions, the heearing also produced the first indication that some lawyers within the administration have raised the question of whether the Conventions should be revised. Gonzales said there had been some discussion of the subject, and some officials had suggested "maybe this is something that ought to be looked at," but he added that there was no systematic project or proposal being forumlated that he knew of.

Overall, Gonzales' appearance before the Senate Judiciary Committee provided further evidence of the legal outlook that prevails in the higher reaches of the Bush administration and that has informed the development of the war on terrorism. It is an outlook that favours an extremely expansive view of Presidential power, and that departs from traditional interpretations of international law in what appears to be an opportunistic rather than principled way.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Torture

(via The New York Times)

An Open Letter to the Senate Judiciary Committee

General John Shalikashvili (Ret. USA) et al. (.pdf file)

Memorandum for the President

From: Alberto R. Gonzales

Subject: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al-Qaeda and the Taliban

January 25, 2002 (via Newsweek) (.pdf file)

Memorandum for Alberto R. Gonzales, Counsel to the President

U.S. Department of Justice, Office of Legal Counsel