JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that amidst the political furor over the role of US Attorney General Alberto Gonzales in the firings of US Attorneys we should also remember his involvement in the development of US policy denying Geneva Conventions protection to prisoners and authorizing "coercive interrogation" outlawed by the customary and treaty-based laws of war...
As John Yoo has disclosed, the inner circle knew that following Geneva law would "interfere with our ability to ... interrogate," since "Geneva bars 'any form of coercion'". For the inner-circle "[t]his became a central issue," and following "'Geneva's strict limitations on ... questioning'" "made no sense." They calculated that "treating the detainees as unlawful combatants would increase flexibility in detention and interrogation;" and the question became merely "what interrogation methods fell short of the torture ban and could be used" as "coercive interrogation," which includes cruel, inhuman, and degrading treatment outlawed by the customary and treaty-based laws of war, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and customary and treaty-based human rights law.
Alberto Gonzales wrote a subsequently well-publicized memo to the President in January 2002 furthering the common, unifying plan to deny Geneva law protections (especially "Geneva's strict limitations on questioning") and to authorize and effectuate coercive interrogation. Gonzales knew that "any violation of common Article 3" of the Geneva Conventions is a war crime and advised the President to further the plan to avoid Geneva law's proscriptions of coercive interrogation by "[a]dhering to your [earlier] decision that GPW does not apply." On February 7, 2002, the President authorized the denial of protections under Common Article 3 of the Geneva Conventions to members of al Qaeda and the Taliban and authorized violations of Geneva law more generally by ordering humane treatment for detainees merely "to the extent appropriate" and "consistent with military necessity," despite the fact that humane treatment is an absolute requirement of Geneva law "in all circumstances," it is never appropriate to deny treatment required by Geneva law, and alleged military necessity does not justify the denial of treatment required by Geneva law. On September 6, 2006, the President also publicly admitted that part of the common, unifying plan concerning coercive interrogation had involved the crime of forced disappearance of persons. As the President stated, a CIA program has been implemented "to move ... [high-value] individuals to ... where they can be held in secret" and interrogated using "tough" forms of treatment and the CIA program would continue.
Clearly, the Gonzales memo, other memos from members of the Administration, and the President's authorizations, directives, and findings substantially facilitated the effectuation of the common, unifying plan to use coercive interrogation. Moreover, such conduct in furtherance occurred when use of coercive interrogation tactics were either known or substantially foreseeable consequences.
When an Attorney General lies to the American public, we should be outraged. But we should also be outraged by the conduct of an Attorney General and former White House Counsel who is reasonably accused of responsibility for war crimes.
The chorus against Gonzales might ponder the values portrayed in a popular TV series. In particular, the people should be represented by those with courage to enforce the law, who reaffirm the demands of the Founders and Framers that no one is above the law, who assure younger generations that power is not law, and who seek to end impunity.
Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston and a former Captain, U.S. Army JAGC and member of the faculty at the Judge Advocate General's School. His article in the Columbia Journal of Transnational Law and forthcoming works document the role of Gonzales and several other members of the Bush Administration in effectuating the common, unifying plan.