In the debate over how to interrogate terrorists, the Bush administration and its allies are happy to take on what they see as softheaded human-rights activists. They ought to be embarrassed, though, when they are also at odds with Ronald Reagan and George H.W. Bush.
This departure became clear during the Senate Judiciary Committee’s hearings on the nomination of Alberto Gonzales for U.S. attorney general. One of the most controversial issues was a 2002 Justice Department memorandum sent to Gonzales, then counsel to the president, providing guidance on the restrictions imposed by the UN Convention Against Torture.
The memo, written by then-Assistant Atty. Gen. Jay Bybee, redefined torture to practically repeal the ban. Unless mistreatment caused the kind of pain associated with “organ failure, impairment of bodily functions or even death,” it wasn’t torture and therefore was allowed.
This interpretation was so cockeyed that the Bush administration eventually was forced to abandon it–though not until late last year. At the hearing, Gonzales solemnly declared that “torture and abuse will not be tolerated by this administration.” But when asked about the Bybee memo, which he had solicited, he admitted, “I don’t have a disagreement with the conclusions then reached by the department.”
Asked by Sen. Dianne Feinstein (D-Calif.) about “forced nudity, the threatening of detainees with dogs and `water-boarding'”–a method designed to simulate drowning–Gonzales said we “should avoid the use of such harsh methods of questioning if possible.” If possible?
It turns out that Gonzales thinks the torture convention permits all sorts of nasty methods–so long as they fall an inch or two this side of thumbscrews and cattle prods.
You see, the treaty has two major components. The first is a ban on torture. The second is a ban on “cruel, inhuman or degrading treatment or punishment which do not amount to torture.” Gonzales says the administration would never engage in outright torture anywhere in the world. But he insists that the U.S. government is fully entitled to use any other method beyond our shores.
He told the committee, “There is no legal prohibition under the Convention Against Torture on cruel, inhuman or degrading treatment with respect to aliens overseas.” Cruelty at home? No way. Cruelty abroad? Let’s get it on!
That permissive interpretation comes as a great surprise to Abraham Sofaer, a senior fellow at Stanford University’s Hoover Institution who served as the top lawyer at the State Department from 1985 to 1990. Though he admires Gonzales and favors his confirmation, he disagrees with the nominee’s cramped reading of the torture treaty–a treaty signed by Reagan and ratified under Bush.
The scope of the ban on torture and scope of the ban on methods that are merely “cruel,” says Sofaer, were meant to be exactly the same. In a letter to the committee, he wrote, “Since the underlying objective is the same everywhere–to prevent official acts of torture, cruelty or other abuse … which are within our legal capacity to prevent, no good reason can be given” for prohibiting torture abroad but allowing other abuses.
Gonzales’ weird interpretation requires grossly distorting the position taken by the last two Republican presidents. One problem those administrations faced was the meaning of “cruel, inhuman and degrading treatment.” They worried that left-leaning Europeans might define it to mean that detainees should get satin sheets and weekly manicures.
So the U.S. specified that it means exactly what “cruel and unusual” treatment means under the 5th and 8th Amendments of the U.S. Constitution–making it a precise command rather than a potentially sweeping obligation.
But the nominee tries to take that substantive definition and convert it into a geographic limit. Gonzales told the Judiciary Committee that since the 5th and 8th Amendments don’t apply outside the U.S., neither does the ban on cruelty in the torture convention. That reading, says Sofaer, is wrong.
The administration and its supporters would like to preserve our options when it comes to certain coercive interrogation methods, such as water-boarding, sleep deprivation, and making prisoners stand or kneel for long periods. But whether we think something is cruel depends on whether we’re giving or receiving. As Sen. Dick Durbin (D-Ill.) has pointed out, the State Department’s annual report on human rights has regularly condemned such methods, when practiced by other governments, as a violation of the torture convention.
But on the treaties governing torture and related matters, the administration resembles W.C. Fields. When Fields was on his deathbed, a visitor was surprised to find the old reprobate reading the Bible. Asked why, Fields replied: “I’m looking for loopholes.”
———-
E-mail: schapman@tribune.com
