Gonzales on Torture Order II

This is another gem from Tuesday's Judiciary Committee Hearing. In the below exchange, Alberto Gonzales concedes to Senator Dick Durban that stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution-- methods that four senior military JAG lawyers recently opined are violations of Geneva Common Article Three-- are "activities that the CIA may be involved with in the future". It's simply astounding. The full exchange is well worth reading:

DURBIN: Thank you, Mr. Chairman.

Thank you, Mr. Attorney General.

There are many controversial issues that have been raised in this hearing: warrantless wiretapping, the political dismissal of U.S. attorneys and the like. I think that this administration and your tenure as attorney general will be haunted in history by another issue, and that's the issue of torture.

DURBIN: It is the reason I couldn't vote for your confirmation, the role that you played as counsel to the president in saying that we as a nation did not have to follow the torture statute and the provisions of the Geneva Conventions.

Now, last Friday, President Bush signed an executive order interpreting Common Article 3 of the Geneva Conventions for the purposes of CIA secret detention and interrogation techniques.

The executive order rejected your earlier position and acknowledges that the CIA must follow applicable law, including Common Article 3 of the Geneva Conventions, the torture statute and the McCain torture amendment, which I was happy to cosponsor.

Do you now agree that Common Article 3 applies to all detainees held by the United States?

GONZALES: What I can say is is that certainly Common Article 3 applies to all detainees held by the United States in our conflict with Al Qaida.

DURBIN: In -- I'm sorry, what's...

GONZALES: In our conflict with Al Qaida, yes.

DURBIN: Well, I'm worried about the qualification at the end. Are you suggesting that other terrorist conflicts are not covered by Common Article 3 in terms of the treatment of detainees?

GONZALES: Sir, you know, we have to look at the words of Common Article 3.

The Supreme Court rendered a decision about the application of Common Article 3 with respect to our conflict with Al Qaida only. And so -- I believe, if I recall correctly.

If that were the case, if there were a different kind of conflict that on its face isn't covered by Common Article 3, then obviously we would not be legally bound by Common Article 3, although I think the president has said we're going to treat people humanely, nonetheless.

DURBIN: So let me get into a specific here.

Last year, the highest-ranking attorneys in each of the four military services -- Army, Navy, Air Force and Marines -- the judge advocates general, testified before this committee. And I sent them follow-up questions asking their opinion about specific abusive interrogation techniques that this administration has reportedly authorized.

I received their responses this morning.

And, Mr. Chairman, I ask consent that those responses be made a part of the record.

LEAHY: They will be made part of the record.

DURBIN: Mr. Attorney General, the opinion of the judge advocates general was unanimous. They all agreed that the following interrogation techniques violate Common Article 3 of the Geneva Conventions -- and there are five -- painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution.

Do you agree?

GONZALES: Senator, I'm not going to get in a public discussion here about possible techniques that may be used by the CIA to protect our country.

What I can say is the executive order lays out a very careful framework to ensure that those agents working for the CIA trying to get information about the next attack do so in a way that is consistent with our legal obligations.

And so, again, without commenting on specific techniques, we understand what the rules of the road are.

DURBIN: Mr. Attorney General, do you know what you are saying to the world about the United States when you refuse to acknowledge that these techniques are beyond the law, beyond the tradition of America?

DURBIN: These judge advocates general have a responsibility as well. They have been explicit and unanimous. The problem with your statement, Mr. Attorney General, is that you are leaving room for the possibility that you disagree with them.

GONZALES: And, of course, those in the military are subject to the Army Field Manual. It's a standard of conduct that is way above Common Article 3. And so they come at it from a different perspective, quite frankly, Senator.

And, again, I wish I could talk in more detail about specific actions, but I cannot do that in an open setting.

DURBIN: But let me just ask you to consider this for a moment.

Aside from the impact of what you've just said on America's reputation in the world, aside from the fact that we have ample record that you have disagreed with the use of Geneva Convention standards and have pushed the torture issue beyond where the courts and the congress would take it, would it be legal for a foreign government to subject a United States citizen to these so-called enhanced interrogation techniques which I just read?

GONZALES: Would it be legal for the United States government to subject...

DURBIN: No, for a foreign government...

GONZALES: For a foreign government.

DURBIN: ... to subject a United States citizen to the five -- any of the five interrogation techniques which I read to you?

GONZALES: Well, again, Senator, we would take the position if you're talking about an American soldier who fights pursuant to the rules of the Geneva Convention...

DURBIN: No, no, no. That's a different story. That's a uniformed person. I'm talking about a U.S. citizen.

GONZALES: Would it be legal under their laws? Would it be legal under international standards? What do you mean by, "Would it be legal?"

We obviously would demand humane treatment and treatment for our U.S. citizens consistent with international legal obligations.

DURBIN: And would you put...

GONZALES: And that's what this president expects of those of us who work in this government.

DURBIN: And do you believe these techniques which I have read to you would be beyond the laws and the international standards if they were used against an American citizen?

GONZALES: Senator, you're asking me to answer a question which, I think, may provide insight into activities that the CIA may be involved with in the future.

DURBIN: No, I'm asking you a hypothetical question. Any time we get close to a specific issue, an investigation, you recuse yourself.

GONZALES: Every time you...

DURBIN: Now, I'm asking you for a general observation.

Mr. Attorney General, the point I'm making to you is if you cannot be explicit about the standards of conduct and the values of this country when it comes to the use of torture, you create an ambiguity which, unfortunately, reflects badly on America around the world, and invites those who would take American citizens as captives and detainees to also suggest, "Well, there's an ambiguity. We can go a little forth than perhaps international law allows."

GONZALES: Well, what's prohibited would be grave breaches which are set forth...

DURBIN: What about these five specifics?

GONZALES: ... in the Military Commissions Act.

There's also violations of the DTA, which would be violation of the cruel, inhumane, degrading standard, which is tied to our constitutional standards of shocking the conscience.

And then there are prohibited actions which would be covered by the president's executive order. And, again, it would depend on circumstances, quite frankly.

DURBIN: Well, that's the kind of ambiguity which allows many people to conclude that you personally and this administration, whether by signing statements or Bybee memos, are really trying to leave a little opening in a door for the United States to engage in conduct which we condemn around the world.