Gonzales' Resignation Should Not Impede Inquiry Into War Crimes

by Roberto J. González

In the aftermath of Alberto Gonzales' resignation and the U.S. attorney firings scandal, many have forgotten about the role he played in creating policies profoundly more troubling from a global perspective - policies that violate international law. They warrant not only Gonzales' resignation, but an independent investigation into his involvement in war crimes.

These policies are best exemplified by the "torture memos" Gonzales prepared from 2001 to 2003 while serving as President Bush's legal counsel. The documents, written by him and other administration lawyers, led to grave breaches of the Geneva Conventions and the U.N. Convention against Torture at Guantanamo Bay, Abu Ghraib and overseas secret prisons.

The most infamous memo was a Jan. 25, 2002, letter from Gonzales to Bush, which argued that "the war against terrorism is a new kind of war ... this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions" regarding treatment of suspected al Qaeda and Taliban members. Days later, Bush made it official policy.

During 2002, Gonzales chaired meetings with CIA and Pentagon advisers regarding the limits of interrogation and torture. The meetings included discussion of the relative merits of handcuffing, sleep deprivation, exposure to near-freezing temperatures and "water boarding" (simulated drowning). The advisers eventually relayed new policies down the chain of command, paving the way for ghastly abuses at Guantanamo Bay, Abu Ghraib and the CIA's secret prisons.

As early as January 2005, a dozen retired generals and admirals publicly opposed Gonzales' nomination for the post of U.S. attorney general, declaring that "U.S. detention and interrogation operations in Afghanistan, Iraq, Guantanamo Bay, and elsewhere ... have fostered greater animosity toward the United States, undermined our intelligence-gathering efforts, and added to the risks facing our troops serving around the world."

Jordan Paust, a former member of the U.S. Army Judge Advocate

General Corps, recently wrote that "not since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the

treatment and interrogation of persons detained during war."

Gonzales and his colleagues represent a radical fringe that has come under extraordinary criticism from prominent conservative lawyers Bruce Fein, Bob Barr, David Keene and Richard Viguerie, who recently founded the American Freedom Agenda to restore "an enlightened equilibrium among the three branches of government." The president's counselors - including Gonzales - attempted to put into practice a controversial legal concept known as the "unitary executive" theory, which maintains that congressional and judicial power over the executive branch should be strictly limited and that the president should retain complete control over all Cabinet-level agencies.

The 9/11 terrorist attacks led to a series of events that helped to hasten the development of the "unitary executive:" Congress passed the Use of Force Resolution on Sept. 14 (ceding war power to the president) and the PATRIOT Act on Oct. 26 (restricting civil liberties); and the president issued an executive order on Nov. 16 (proclaiming a state of extraordinary emergency, announcing rules for defining enemy combatants and forming military commissions not subject to congressional or judicial review). Taken together, these and subsequent changes mean that (in the words of AFA) "since 9/11, the executive branch has chronically usurped legislative or judicial power, and has repeatedly claimed that the president is the law."

The attorney firings scandal should be seen within the broader context of an executive power grab that has expanded extraordinary renditions, created a global prison network, attacked habeas corpus rights, engaged in warrantless surveillance, invaded and occupied Iraq without U.N. approval and disregarded international law.

As discussion begins about Gonzales' replacement, we should bear in mind the damage that he and other "unitary executive" theorists have done to the reputations of the eight fired attorneys - and to many others harmed by their reckless legalistic maneuvers. Gonzales and his colleagues must be held accountable for their crimes.

Roberto J. González is associate professor of anthropology at San Jose State University. He is the author of "Anthropologists in the Public Sphere: Speaking Out on War, Peace, and American Power" (2004). E-mail him at roberto_gonzalez@netzero.net.
© 2007 The San Francisco Chronicle