Kennedy Letter Claims 'Smoking Gun' Against Gonzales
by Curt Matlock, Wed Feb 02, 2005 at 08:38:47 AM EST
Senator Edward Kennedy stood on the floor of the Senate on Tuesday to denounce torture and to denounce Alberto Gonzales. Kennedy later released from his office a letter, Kennedy Urges Senate to Deny Gonzales Nomination Over Torture Policies, detailing his objections to Gonzales and providing evidence of a "smoking gun" regarding Gonzales efforts to provide a legal rationale for subverting international law and inoculating against later war crimes charges.
In his long, detailed, damning letter, Senator Kennedy made no effort at sugarcoating his words and made the moral and ethical case against Gonzales in stark terms. In his lead paragraph he lays out what is at stake for America:
President Bush claimed the moral high ground for America in his Inaugural Address last month, reciting the ideals that were contained in the Declaration of Independence. In that fundamental American document the rights of a person, any person, were laid out. President Bush evoked those national ideals in his address and was quoted by Senator Kennedy.
After quoting the President, Senator Kennedy moves on to the specific case of Alberto Gonzales.
Kennedy then, in straightforward terms, denounces torture as contrary to America's basic values and traditions.
Many apologists of the Bush Administration claim that we live in a new world. The evil act of destroying the World Trade Center towers is to be repaid by fighting with new rules. To fight this war President Bush is breaking with our long tradition of respecting the basic humanity of every person, including our enemies. Apparently, to save America, we can no longer be concerned about such quaint notions as dignity, and human rights. Senator Kennedy captures this well with these words:
To the contrary, Americans have been united in the belief that an essential part of winning the war on terrorism and protecting the country for the future is safeguarding the ideals and values that America stands for here at home and around the world.
But what of specific acts of torture? Senator Kennedy next details the Abu Ghraib incidents and mentions Guantanamo and Afghanistan, but in this portion, he only mentions the well-known incidents involving dogs and stress positions, which have been widely reported. He cites a poll, which shows most Americans disapprove. In fact, as Senator Kennedy notes, the American public is correct and moral by being against torture while the U.S. government has gone wrong. Senator Kennedy:
The American public has held fast to our most fundamental values. How could our government have gone so wrong?
After a short recitation of the way in which Alberto Gonzales pulled himself up from modest beginnings to his current position, Senator Kennedy then details the specific acts which have led to his decision to vote against Gonzales for the position of Attorney General:
He adopted an absurdly narrow definition of torture in order to permit extreme interrogation practices.
He advocated an unjustifiably expansive view of presidential power, purporting to put the Executive Branch above the law.
He ignored the plain language of the Geneva Conventions in an attempt to immunize those who may commit war crimes.
He continues to push a discredited interpretation of our treaty obligations to permit the C.I.A. to commit cruel, inhuman and degrading acts outside the United States.
He refuses to be candid about his interpretations, policies, and intentions.
That strong condemnation of Alberto Gonzales is clear as a laser beam. There is no pretense or subtlety here. This attack on Gonzales is as explicit as it is specific. Senator Kennedy is laying out a case in a logical, complete, rational fashion that is devastating to the standing of Gonzales as a nominee to become the nations highest enforcer of law.
Let no Republican or Democrat from this day forward claim that they are not aware of the seriousness and soundness of the charges against Alberto Gonzales and the Bush Administration.
Senator Kennedy in this letter from his office, has accused Alberto Gonzales of developing language intended to justify putting the President above the law. He has further accused him of developing a pre-emptive defense against later war crimes charges.
This is a historic day and a shameful day for the United States.
A lengthy section of Senator Kennedy's letter next reviews the history of Gonzales association with the "Bybee-Gonzales Memo" before Senator Kennedy proceeds to give several specific instances of memory difficulties by Judge Gonzales in his Senate Testimony.
He can't remember who asked for the Justice Department's legal advice in the first place.
He can't remember whether he made any suggestions to the Department on the drafting of the Bybee-Gonzales Memorandum, although he admits that "it would not be unusual" for his office to have done so.
He doesn't know how the memo was forwarded to the Defense Department and became part of its "Working Group Report" in April 2003, which was used to justify the new interrogation practices at Guantanamo. Those practices, in turn, to use the obscure word resorted to by the Administration, somehow "migrated" to U.S. military operations in Afghanistan and Iraq, as if no human hand had been involved in the dissemination.
Many Americans continue to deny that true torture occurred. Most would agree that sexual assault would fit that description. Kennedy does mention incidents of sexual assault but he also holds back from detailing the worst, saying instead that there are other incidents, which are too sickening for an open Senate session. Torture was not rare. It was not confined to Abu Ghraib. It wasn't just used against known terrorists. It was pervasive. It included severe beatings, rapes, and deaths. It was confirmed by unimpeachable, authoritative sources (read all 6 pages).
It happened, it is happening, and it is bad. Evil?
At the center of the controversy of course is the Bybee Memorandum requested by Gonzales in his capacity as White House Counsel. Senator Kennedy refers to it as the "Bybee-Gonzales Memorandum".
Senator Kennedy next itemizes the findings about the legality of torture reached by the Memorandum and has this to say about their conclusions:
As Chairman Specter himself said today, the original Bybee-Gonzales memo was "erroneous in its legal conclusions," and its definition of torture 'was not realistic or adequate." Nevertheless, Mr. Gonzales allowed it to stand for over two years, and allowed it to be disseminated to other agencies, like DOD, where major portions were absorbed verbatim into official policy. And now we know from the Times, that it was used in the Justice Department to approve specific extreme methods for the CIA.
Senator Specter's "erroneous in its legal conclusions" statement is welcome confirmation from at least one Republican that the Bybee-Gonzales Memorandum is legally wrong. Senator Kennedy then labels as "arrogant nonsense" administration excuses about why they cannot publicly state which practices they consider illegal.
This conduct included burning detainees with lighted cigarettes, exposing them to extreme temperatures, giving forcible enemas and holding them in prolonged stress positions in their own urine and feces. He explained his refusal to respond by saying to us: "[W]ere the Administration to begin ruling out speculated interrogation practices in public, by virtue of gradually ruling out some practices in response to repeated questions and not ruling out others, we would fairly rapidly provide al Qaeda with a road map concerning the interrogation that captured terrorists can expect to face."
That's arrogant nonsense. Our laws, our treaties, and our military field manuals all provide specific and clear guidance on where to draw the line on torture. Mr. Gonzales's failure to condemn these acts of torture only weakens America's standing in the world and sets back our efforts against terrorism.
How can we confirm as the chief law enforcement officer a nominee who is afraid to stand up for the rule of law?
Senator Kennedy goes on to make the case that the conclusions in the Bybee-Gonzales Memorandum are unconstitutional and amount to an attempt by the Executive Branch to put itself above the law.
At a press conference in June 2004, Mr. Gonzales refused to say whether this statement remains "good law" for the Bush Administration. He would say only that the President "has not exercised his Commander-in-Chief override; he has not determined that torture is, in fact, necessary to protect the national security of this country."
Mr. Gonzales evaded questions on this issue by Committee members. To this day, we still do not know whether the President believes he has the power as Commander-in-Chief to authorize torture.
There is no such thing as a "Commander-in-Chief override." It's certainly not in my copy of the Constitution. It appears to be something that Mr. Gonzales and his colleagues have invented.
Congress has repeatedly passed laws and ratified treaties prohibiting torture and mistreatment of detainees, and the President does not have the power to violate them.
Constitutionally, the President does not have the power to violate law.
The President is not above the law. Yet, Gonzales legal opinions have attempted to place the President above the law. Therefore, as confirmed by Senator Specter, those opinions are wrong.
But unconstitutional presidential actions are not all that Senator Kennedy believes the Administration is guilty of. There is reason to believe war crimes have been committed:
A second memorandum, the so-called "Goldsmith Memorandum" is next introduced and discussed. Senator Kennedy refers to this as a "smoking gun". The Goldsmith Memorandum outlines a policy to "ghost" prisoners by hiding them from the Red Cross and other agencies. General Taguba, in his official report, refers to this as a violation of international law. Senator Kennedy directly ties Gonzales to the adoption of this illegal practice by U.S. Forces and thus of culpability in war crimes.
Article 49 of the Fourth Geneva Convention specifically 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." Violations of Article 49 constitute "grave breaches" of the Convention and therefore qualify as "war crimes" under federal law.
In spite of the clear, unequivocal language of this provision, the Justice Department ruled that Article 49 does not in fact prohibit, for the purpose of "facilitating interrogation," the temporary removal from Iraq of "protected persons" who have not been accused of a crime. Scott Silliman, an expert in military law at Duke University, observed that the Goldsmith memorandum "seeks to create a legal regime justifying conduct that the international community clearly considers in violation of international law and the Convention."
As Senator Kennedy notes, the U.S. Justice Department ruled, contrary to the understanding of our own allies, that the Geneva Convention does not prohibit removing from their country persons not accused of a crime. For this war we need the flexibility to break the law. We need to hold persons on suspicion alone. We'll get the evidence later, or not at all. Years may pass. Perhaps the justifying logic is that no innocents will be falsely imprisoned, because they are all guilty?
Senator Kennedy continues (emphasis added):
The legal analysis in the Goldsmith Memorandum is preposterous. Yet it appears to have provided a legal justification for the C.I.A. to commit war crimes. As with the Bybee Memorandum, Mr. Gonzales has categorically refused to answer the Senate's questions about his involvement.
He refuses to provide or even conduct a search for documents relating to his request for the Goldsmith Memorandum.
He refuses to say anything about his discussions with the author of the memo.
He says he doesn't know whether the C.I.A. acted on the memo, as the Washington Post reported.
He even says that he has never had the "occasion to come to definitive views" about the analysis in the memo.
Far from helping to clear the air, Mr. Gonzales has clouded it further. To let his nomination proceed would make a mockery of the notion of Congressional oversight and accountability.
Preposterous says Kennedy about the Goldsmith Memo. Wrong says Specter about the Bybee-Gonzales Memo. The legal analysis in these memoranda was wrong in both cases. Gonzales refuses to provide documents and answers to the Senate about his involvement in the Goldsmith Memorandum. Gonzales has hindered the Senate in pursuing its Constitutional duty to provide advice and consent to the President on his Cabinet nominees. Senator Kennedy asserts that his nomination should not proceed on that basis.
Senator Kennedy continues by listing the predictable effects of the legal opinion rendered by Gonzales:
As predicted by Secretary Powell and senior military lawyers, Mr. Gonzales's memorandum of January 2002 on the applicability of the Geneva Conventions to the war in Afghanistan brought a strong negative reaction from even our closest allies and lowered the bar for the protection of our own troops.
According to the Schlesinger Report, in September 2003 military commanders in Iraq cited this memo as legal justification for the use of extreme interrogation techniques at Abu Ghraib prison. The worst abuses there occurred from September to December 2003.
In his answers to the Committee, Mr. Gonzales made clear that the Administration does not consider the C.I.A. to be bound by the prohibition on cruel, inhuman and degrading treatment in Article 16 of the Convention Against Torture. This shift in legal policy was apparently made in a separate Justice Department memorandum which has also not been provided to Congress. <br.<br> Today, therefore, C.I.A. agents are authorized to treat detainees in a cruel, inhuman, and degrading manner - even if it violates constitutional rules in the U.S. - so long as they do not commit "torture" under the Department's narrow definition. President Bush also exempted the C.I.A. from his directive in February 2002 to treat all detainees "humanely." This shameful change in policy obviously endangers the safety of American soldiers who are captured abroad.
As a result of our policy on torture we have alienated our allies, provided documented evidence of U.S. torture to enemy propagandists, and are currently still engaged in conducting unlawful interrogations. As a result we are exposing to retributional torture our own soldiers, tourists, contractors, diplomats, businessmen, and other travelers abroad.
After laying out the case against Gonzales, Kennedy concludes by asking for a bi-partisan vote to defeat his nomination.
I hope that this tradition of bipartisanship and consensus will continue today. I hope that all members of the Senate will cast their vote in a way that upholds our fundamental values.
A "no" vote is the right vote if we care about maintaining America's standing in the world and fighting the war on terrorism. The torture and other abuses of prisoners in Iraq, Afghanistan, and Guantanamo have done immense damage to America's standing in the world. The extreme and irresponsible claims in the Bybee and Goldsmith Memorandums have raised basic questions about the genuineness of our commitment to the rule of law.
It is the right vote for our troops. The Administration's shameful disregard for our laws and treaties on torture has lowered the bar for the protection of our own soldiers. It has violated the military's longstanding "golden rule": treat captured combatants in the manner we expect our own soldiers to be treated. What can Mr. Gonzales possibly say to a country that justifies its torture of a U.S. soldier by citing Mr. Gonzales's own record of support for it?
A "no" vote is the only vote that is consistent with the fundamental values on which this nation is founded: justice, accountability, and respect for individual dignity.
The continuing effort to blame the torture scandal on a "few bad apples" among our soldiers while rewarding Mr. Gonzales with promotion to Attorney General is a despicable signal for America to send the world. We should not support a nominee who has done so much to harm America's basic interests and fundamental values. I urge my colleagues to reject this nomination.
The uplifting rhetoric used by the President in his Inaugural Address invoked words and phrases which speak to America's highest values. Freedom. Human Rights. Dignity. Matchless Value. But the actions of President Bush and Alberto Gonzales reveal the fact that they do not believe those rights apply to everyone. For them, much depends on whether you are wearing a uniform and who you are fighting for when deciding whether you are subject to torture. The decision to torture no longer rests on morality or values, but on expediency and immediate need. If you are an especially frightening or brutal enemy like al Qaeda, then you are subject to torture. If you are held by the CIA then you are subject to torture. If the warfare is of a "new" type, then you are subject to torture.
Unlike every other war fought throughout its long history this war is deemed unique in the way the U.S. treats its enemies. The needs of this war and this generation are paramount. Tradition, Values, Law, and the U.S. Constitution be damned.
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