What's wrong, unfortunately, is that attorney general nominee Alberto Gonzales said nothing of the sort -- and, so far, has continued not to disavow torture in his double-speaking confirmation hearing. His opening remarks set the scene:
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. (emphasis added)The italicized portion was what attracted the placatory headlines. But Gonzales's interpretation of some of the key phrases in that pledge -- like "applicable law," “obligations,” and "our nation's values" -- is, to say the least, way out of the mainstream. (The administration's definition of "citizens" and "enemy" is often a bit funny as well.)
The administration's strategy of self-defense, with the memos spewed out by the Justice Department and Defense Department as with so many other topics, has been to cite principles the country holds dear, while maintaining interpretations of those concepts utterly alien to most Americans. Saddest of those misconceptions is the idea that "our nation's values" absolve the overreaches of Abu Ghraib and Guantanamo Bay. We know now that between 70 percent and 90 percent of the prisoners at Abu Ghraib were, at worst, common criminals, according to a February 2004 report by the International Committee of the Red Cross; whatever the U.S. majority's opinion of torture of committed terrorists, no American would condone indiscriminate detention and abuse of significant numbers of innocent people -- and no security expert would think it a good strategy for stabilizing a country we seek to set free.
But although that may be the most pitiable misjudgment Gonzales and the Bush administration made, it is not the most dangerous. That opprobrium goes to this administration's opinion of "applicable law" -- namely, that there is none.
Gonzales has said over and over that President George W. Bush never decided to abrogate the Geneva Conventions and, solely on executive prerogative, allow our military to do whatever it likes with suspected al-Qaeda terrorists or Iraqi insurgents. But this administration's belief that it could, without so much as giving notice to Congress and on no greater legal authority than the contrived judgment of the Justice Department's Office of Legal Counsel, break any convention on how we conduct a war is shocking and unconstitutional. If the Pentagon did indeed advise that "authority to set aside the laws is 'inherent in the president,'" as The Wall Street Journal reported, then the administration -- our next attorney general included -- apparently believes that there are no "applicable laws" in this country, not for those who work in the executive branch of the government.
It may be the case that, as that March 2003 memo reportedly argued, "national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress." But that is not a decision for George W. Bush or Alberto Gonzales to make. It's a decision for two-thirds of the House of Representatives, two-thirds of the Senate, and three-fourths of the several states to make. The U.S. Constitution makes it clear that Congress "make[s] Rules for the Government and Regulation of the land and naval Forces" and "Rules concerning Captures on Land and Water." Not the president, not the Justice or Defense Departments, not the White House counsel. The Congress.
Yet in total secrecy, the president -- with the best legal advice of his counsel Alberto Gonzales -- decided that, if he wanted to, he could do just that. He could flout the Constitution and circumvent Congress without so much as a word.
The president may never have taken advantage of that authority. We don't know; there are still many memos missing and decisions unknown. But we do know that that authority has never been disavowed. We know that Gonzales's predecessor, John Ashcroft, has argued that the president's conduct of the war should be as far out of the jurisdiction of the Supreme Court as possible. And we know that Gonzales insists that all of the legal reasoning in those memos was sound. So it doesn't matter if Gonzales pledges to uphold the laws of our country. For our attorney general, there are none that matter.
Jeffrey Dubner is the Prospect's associate Web editor.
