Speedy Gonzales & The Rule of Law

What does it mean that Alberto Gonzales is about to be approved as Attorney General of the USA? That this particular appointee of President George W Bush will become the chief law enforcement officer of the American nation?

The President's advisors and spin doctors proclaim his elevation from the President's counsel to his current position, as a moment of historic magnitude. For the first time in American history, a Hispanic will occupy one of the four highest administrative offices in the nation. They cite his story, the rise from rags to riches, as proof that democracy and egalitarian opportunity are alive and well in the world's sole superpower. Even the often-pugnacious Democratic Senator Patrick Leahy, the ranking member of the opposition party on the Judiciary Committee which vetted and will vote on the nomination, recently said: 'The road you've traveled, from being a 12-year-old boy, just about the age of your oldest son, selling soft drinks at football games, all the way to the state house in Texas and our White House is a tribute to you and your family.'

Bush is no doubt mindful of the Latino success story that Gonzales embodies. Hispanics, according to exit polls, gave 44 per cent of their votes to Bush in the just-concluded presidential election. Gonzales' appointment is a matter of pride for many Hispanics, even among those who didn't support or vote for Bush.

But something other than identity politics and cultural pride are at stake in the Gonzales appointment.

More than any other event, this appointment, and the ease with which it will pass the Senate without significant opposition, reveals the extent to which the USA is moving expeditiously, and without significant complaint, along a road that leads to what one can only, uncomfortably, call fascism.

Gonzales stands as the apostle of torture in the administrative councils of the American policy. When it appeared that questioning of 'suspects' held as possible informants about the murderous attack on the Twin Towers in New York on 11 September 2001 might violate the Geneva Convention, international law and American law, Gonzales asked Department of Justice attorneys for a definition of what constitutes torture, and to whom the prevailing legal restrictions on torture might apply.

On 25 January 2002, a memorandum from Gonzales to Bush stated that 'the war against terrorism is a new kind of war, which renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.' The prohibition against torture was thus found to be 'obsolete' and 'quaint', as if it were a hand-cranked phonograph in our day of stereos and portable CD players.

Much was made of the USA's previous President, Bill Clinton, and his dalliance with a young intern, Monica Lewinsky. Again and again, conservative critics called him 'immoral'. Let there be no doubt: there is something morally wrong about breaking marriage vows and about using the perquisites of power and age to take advantage of a young woman. But the fate of a nation scarcely swung on some sexual escapade in the White House, however distasteful and upsetting the incident may have been. Such is not the case with Gonzales and his unethical work in the White House.

It is more difficult to talk about ethics than we often imagine. Philosophers do it, religious sages do it, but in daily life we are more likely to talk about other things: sports, cinema, political intrigues, celebrities. When we talk about ethics, we often fall back on morality, on the codes that have been handed down to us by our parents, our religion, our schooling or (more and more in today's world) what pundits tell us in the mass media.

But ethics goes to the very deepest concerns of human life. It inquires into how we will live together with others--sometimes those immediately around us, sometimes those of that larger world of community or town or nation or even world--in a way that is compassionate, fair, just and responsible.

What does it mean to be a 'good' man or woman? That is the central question addressed by ethics, the very core of ethical inquiry.

Whatever answer one moves toward in defining what comprises a 'good' human being, we can be certain that the answer does not include condoning the torture of other human beings.

Yet, at this moment the USA is poised to anoint as its chief law enforcement official a man who counsels and condones the use of torture.

Nor was his January 2002 memo aberrant, an accident. Six months later, in August 2002, Gonzales cleared a Justice Department memo that stated bluntly that both international treaties such as the Geneva Convention and US law do 'not apply to the President's detention and interrogation of enemy combatants.' Simple reasoning, but terrifyingly strange: If you're not an American, then it is OK for the American authorities to torture you.

That memo, which is addressed to Gonzales, opens with the words 'You have asked for our Office's views regarding the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.' It states that Americans acting under the President's authority can inflict 'cruel, inhuman or degrading' treatment to prisoners without violating laws and treaties against torture. Torture can properly be claimed, according to the memo prepared by Assistant Attorney General Jay Bybee, only when there is severe pain of 'an intensity akin to that which accompanies serious physical injury such as death or organ failure.' If you aren't dead or close to it, it isn't torture.

Mark Danner, the author of Torture and Truth: America, Abu Gharib and the War on Terror, recently wrote with admirable clarity of Gonzales: 'He is unfit because, while the Attorney General is charged with upholding the law, the documents show that as White House counsel, Gonzales, in the matter of torture, helped his client to concoct strategies to circumvent it.'

In his opening testimony before the US Senate, which continues to consider his nomination, Gonzales claimed he was only soliciting opinions, that this was his job as counsel.

Wrong. Wrong. Wrong.

In the first place, he passed along opinions over his signature, so that those opinions carried his implicit, and likely his explicit, consent.

In the second place, choosing to ask if torture is legal, and asking if it can be narrowly defined as only the most harrowing of conduct, are not innocent acts: they presume that extant prohibitions against torture might and probably should be weakened. His request was to cast about for legal loopholes rather than to seek to clarify fundamental principles of the rule of law. And, in fact, Gonzales' staff played a role in preparing the memo which found those loopholes: Timothy E Flanigan, his deputy counsel, talked about a draft of the memorandum with lawyers at the Office of Legal Counsel before it was finalized. (It should be noted that when the memo became public, and only then, the administration repudiated it.)

But the worst offense is one which the Senators--who, not wanting to offend Hispanic voters, will end up overwhelmingly approving Gonzales as Attorney General--refuse to address.

The purpose of legal counsel is not merely to tell one's employer what is legal. The purpose of a counsel is to "counsel": to offer sound advice, not just about narrow constructions of legality, but about the rightness of proposed courses of action. 'This might be legal,' a counsel should advise his client, 'but it is the wrong thing to do.' It may be wrong because it is impractical, or because it has negative operational consequences, or because is costly, or because it opens one to litigation by those who challenge its legality. But it may also be wrong because it is unethical.

The fact that Gonzales solicited and then passed along advice which defined prohibitions against torture as quaint and obsolete is not as egregious as the fact that he passed that advice along without saying, 'This is a legal opinion, but anyone can offer an opinion. This opinion is wrong, both because it is too narrow legally, and more importantly, because it is unethical.' He should have informed Bush that the Geneva Convention protects people everywhere from unjust and inhumane treatment, and that its abrogation would have severe consequences for the conduct of nations - and specifically, in the diminishing of protection for US troops abroad. (Secretary of state Powell submitted a memo to the President saying exactly that. But then, Powell is now on the way out, and Gonzales is now on the way in.)

He should have said torture is heinous, and when carried out systematically, it is a crime against humanity. Instead, he looked for ways to justify torture.

Later he, like everyone in the Bush administration, professed amazement that American soldiers tortured prisoners at Abu Ghraib prison in Iraq. (Well, they weren't dead and didn't have organ failure, so maybe it wasn't really torture?) (But I should not jest, not even parenthetically: We are speaking of torture, here.)

Such a man as Gonzales should not be walking the streets. He should be brought up for trial on the basis of enabling war crimes. Instead, he is the soon-to-be confirmed next Attorney General of the USA. Its chief law-enforcement officer.

Ethics seem irrelevant in the USA today, despite much talk by pollsters that ethical issues have an effect on elections. (That sort of ethics refers primarily to sex: no Presidential fooling around, no sanctioning of homosexual behavior through "gay marriage".) Meanwhile, Bush is determined to use his power to get what he wants, even if what he wants is wrong. Even if what he wants is to torture suspects and to appoint a possible war criminal to head up the legal functions of the US government.

And the American people? A lassitude has set in. There is work, there is shopping, there are television and video games and popular music. Ethics seem, for many, too difficult a burden to shoulder. Maybe in the 22nd century. But not now, in this time, in this place.