Undeniably, Alberto Gonzales rose from quite humble beginnings -
starting life in a tiny shack with his 7 brothers and sisters and two non-English speaking (and possibly illegal) migrant parents from Mexico. Entirely through his own efforts, Gonzales joined the military and then the Air Force College (and later Rice University), where he graduated with a political science degree. He then earned a law degree from Harvard in 1982.
He then had two fortunate events in his career - one was being hired by the immensely powerful Texas law firm of Vinson and Elkins. The other was meeting (then governor of Texas) George W. Bush in 1994, who offered him a job as his general counsel or private lawyer.
Ever since then, he has been one of George Bush's most trusted advisers and Gonzales has profited from that relationship - becoming the Texas Secretary of State (1997), a judge on the Texas Supreme Court (1999), the president's general counsel (2001) and now on the verge of becoming confirmed as the Attorney General of the United States.
Vinson and Elkins is an international law firm and is headed up by a group of very conservative lawyers, some of whom are among the biggest financial contributors to George Bush's electoral campaigns. Vinson and Elkins' largest client was the former energy giant Enron and there are allegations that Gonzales (as the president's counsel) was warned by Vinson and Elkins before Enron collapsed. Gonzales has also played a role in keeping Vice President Cheney's "Energy Task Force" notes from being turned over to the U.S. Congress.
During his tenure as general counsel for the Texas governor (Bush), Gonzales had the responsibility of preparing a brief report on every death row clemency request. The Atlantic Monthly wrote a scathing article showing how Gonzales failed to include vital information in these reports that Governor Bush relied upon in deciding whether or not to overturn the death penalty - literally a life and death decision.
The Atlantic Monthly article suggests that either Gonzales was quite deficient as an analyst of the legal matters or else was furthering his agenda of enforcing the death penalty. It was under Gonzales' watch that George Bush approved the execution of Terry Washington, a retarded man, leading to worldwide condemnation (more on this here).
What follows is from an article I wrote back on November 12, 2004. In light of the fact that FBI memos have come to light which substantiate that George Bush might be liable for prosecution on war crimes, it's a bold act of self-preservation that George Bush has nominated Gonzales as the chief enforcement officer of the laws of the United States.
Alberto Gonzales played a key role in the decision making process of treating men and boys captured in Afghanistan as "illegal combatants" and not "prisoners of war". It was this process that led to Guantanamo Bay, Bagram, Abu Ghraib, Diego Garcia and other secret detention centers where torture, intimidation and a suspension of human rights have made the United States hated around the world.
A lot of dense legal language was used to transform the detainees into "illegal combatants" so they could be stripped of their rights, and I want to see if I can't unravel this mystery a bit (here is Gonzales' verson of it by the way).
For the record, I will use the word "detainees" instead of "prisoners" because a prisoner is someone charged with a crime. Only a handful of people captured have ever been charged with a crime, therefore they are only being "detained".
After the American invasion of Afghanistan began on October 7, 2001, the issue of how to treat men and boys captured on the battlefield was raised. Members of the Bush Administration wanted to hold and interrogate detainees. However the Geneva Conventions and international law held that anyone captured was a "Prisoner of War", which gives them certain rights and protects them from being interrogated. Article 17 of the 3rd Convention states:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
Thus the idea was born to classify them as "illegal combatants", evade the protection given to "Prisoners of War" and allow them to be held and interrogated for an infinite amount of time without ever charging them with a crime.
A brief chronology:
January 9, 2002 - At the request of Alberto Gonzales, John Yoo and Robert Delahunty, two Department of Justice employees in the Office of Legal Counsel, wrote a memo to William J. Haynes outlining how to convert the detainees into "illegal combatants". William J. Haynes is a lawyer working for the Department of Defense.
January 18, 2004 - President Bush "determines" that the detainees are "illegal combatants" and not "Prisoners of War".
January 19, 2002 - Donald Rumsfeld, following the memo his counsel (Haynes) received, instructs the commanders in the field that all detainees are "illegal combatants" and can be interrogated.
January 22, 2002 - the DOJ Office of Legal Counsel write a memo to Haynes and Alberto Gonzales, the President's lawyer, explaining in great detail how and why the President has the power to classify the detainees as "illegal combatants".
January 25, 2002 - Alberto Gonzales writes a memo to the President, confirming the conclusions of the DOJ Office of Legal Counsel and urging the President to classify the detainees as "illegal combatants".
January 26, 2004 - Secretary of State Colin Powell writes a memo to Gonzales, strongly disagreeing with his conclusions and urges the President to reconsider his decision.
The DOJ Office of Legal Counsel is a team of lawyers who, when asked by the President's lawyer (in this case, Gonzales), offer their opinion on the legality of issues. The DOJ-OLC also gives the President advice on complex constitutional questions.
There were two legal hurdles to overcome to classify captured men and boys as "illegal combatants" rather than "Prisoners of War". One was the Geneva Conventions, a treaty signed by the United States. The other was the federal "War Crimes" law. Let's start with the Geneva Conventions.
There were four separate articles "Geneva Conventions", the first signed in 1864 (treatment of battlefield casualties) and the last one in 1949 (treatment of civilians during wartime). The Third Geneva Convention specifically details how to treat "Prisoners of War". Both the United States and Afghanistan have fully ratified all four articles of this treaty, including the additional protocols.
The manner by which Gonzales and the DOJ-OLC got around applying the 3rd Geneva Convention on Prisoners of War (GPW3) was by stating that the treaty only dealt with "wars of an international nature", that is to say, a war between two countries. They determined that Afghanistan was a "failed State" and therefore, in essence, the United States was intervening in a kind of a "civil war" rather than a war against the nation of Afghanistan.
Gonzales determined Afghanistan was a "failed State" because:
The Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfulling its international obligations (e.g., was in widespread material breach of its international obligations).
[and because] the Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group.
Using the same logic, many other countries around the world could easily be labeled "failed States". China does not exercise "full control" over its legal territory (Taiwan). Neither does India (Kashmir, Assam, etc.), Israel (Gaza Strip), Nigeria (Ijaw) or Pakistan (NWFP) for that matter.
In fact, during President Clinton's invasion of Somalia, this same determination could've been used as well. Or in Serbia, which did not exercise "full control" over Kosovo. Or Bosnia or Haiti. Frankly any nation with serious domestic unrest could be said to "not exercise full control" over its territory and people.
The DOJ-OLC determined that in previous "interventions" (including Viet Nam!), the U.S. had "conduct[ed] operations in such circumstances as if the Geneva Conventions applied". In other words, the U.S. didn't have to follow the Geneva Conventios before, the United States just generously decided to do so of its own free will.
However at the time of the American invasion of Afghanistan, the Taliban controlled about 90% of the territory with only the Panjshir Valley and extreme north being somewhat independent. Of course this was also true during the years of Soviet occupation as well.
The Taliban government was recognized by SOME of the international community (esp. Pakistan and Saudi Arabia), just not all of it. I guess the question is how many countries need to recognize your legitimacy before you're legitimate? David Ben-Gurion declared the "nation of Israel" in 1948, which was recognized by some and not by others (particularly Arab states). Somaliland and Western Sahara aren't considered legitimate while East Timor and Eritrea are. Transdniestr and Abkhazia are considered "legitimate" by some and not by others. And so on...
The charge of being "not capable of fulfilling international obligations" specifically refers to the Taliban's refusal to hand over Usama bin Laden per U.N. Security Council Resolutions 1267 (PDF) and 1214 (PDF) . Ironically in these Resolutions, there are several references to the "Taliban authorities", thus indirectly referring to them as a kind of government.
And nearly all of the quotes and references to Afghanistan being a "failed" State came from either members of the Bush government themselves or else American allies such as Tony Blair. It's worth noting here that there is no international definition of what a "failed State" is.
Ironically, Resolution 1214 states:
Any outside interference in the internal affairs of Afghanistan, including the involvementof foreign military personnel and supply of arms and ammunition to all parties to the conflict, should cease immediately.
In a larger sense, many, many nations have failed to heed multiple United Nations Resolutions, including Israel, Turkey and Morocco. By the same logic, these nations are also "not capable of fulfilling international obligations".
As for "Al-Qaeda" members detained in Afghanistan, these were determined to be members of a terrorist organization and not in any way connected to the "legitimate" Afghan military and therefore did not fall under the classification of "Prisoners of War".
Therefore, the only "legal" combatants in Afghanistan were the Northern Alliance and everyone else, Taliban, Al-Qaeda or otherwise, was a "non-State actor" and therefore an "illegal combatant". The DOJ-OLC and Alberto Gonzalez determined that the President could suspend the GPW3 anytime he felt like it. And he did.
Here is some bitter irony from Gonzales' memo to the President:
In response to the argument that should decide to apply GPW to the Taliban in order to encourage other countries to treat captured U.S. military personnel in accordance with the GPW, it should be noted that your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers.
Secretary Powell disagreed with Gonzales' conclusions and stated, in part:
It will reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.
It has a high cost in terms of negative international reaction, with immediate adverse consequences for our conduct of foreign policy.
It will undermine public support among critical allies, making military cooperation more difficult to sustain.
Europeans and others will likely have legal problems with extradition or other forms of cooperation in law enforcement, including in bringing terrorists to justice.
It may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops.
We will be challenged in international fora (UN Commission on Human Rights; World Court; etc.).
Determining GPW does not apply deprives us of a winning argument to oppose habeas corpus actions in U.S. courts.
That last line is the most important one, because that's exactly what happened. On June 28, 2004, the Supreme Court determined in Rasul V. Bush (PDF) that detainees in Guantanamo Bay DID have the right to habeas corpus. That's a fancy way to say they could use American courts to challenge why they were being held in the first place.
However there is a key article in GPW3 that Gonzales and the DOJ-OLC decided to overlook, which is Article 5:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [Prisoners of War], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
In Hamdi v. Bush (PDF) the Supreme Court ruled that "prisoners are presumed to have POW status until a tribunal determines otherwise". It seems that Bush and Gonzales' current position is that the President (the "competent tribunal") determined, en masse, that all detainees were ineligible for Article 4 (Prisoner of War) protection.
U.S. military regulations 190-8 Section 1-6 state that a tribunal must be held and yet this is only just now beginning to happen. And although no "foreign prosecutor" has ever taken up this issue, it would seem fairly clear that Bush's decision to "suspend" GPW3 for detainees is in violation of international law.
Let's review:
Alberto Gonzales, the President's lawyer, asked the DOJ-OLC to find a way to indefinitely hold and interrogate captured men and boys in Afghanistan. Their collective finding was that detainees were not subject to GPW3 protections and therefore could be held indefinitely without being charged.
Using a variety of legal tactics, the Bush administration held off until June 28, 2004 all requests by the detainees to challenge their detention. The Bush administration also ignored Article 5 requirements to grant POW status to all detainees until a tribunal determined otherwise. And until 2004, no tribunals were ever held to determine POW status.
Now let's review American domestic law, USC 18 § 2441, dealing with "War Crimes". Since it's short, I'll publish the entire thing:
(a) Offense.-- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances.-- The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition.-- As used in this section the term "war crime" means any conduct--
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
It would seem pretty obvious that (c)(1) would be the applicable section here, but what is a "grave breach"? GPW3 Article 130 states:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.
Even assuming that the torture and "great suffering" at Abu Ghraib, Bagram and other locations were the exception, it would seem that the last line about "fair and regular trial" constitutes a grave breach.
The DOJ-OLC used about 10 pages of legal jargon to determine that, since GPW3 didn't apply, Article 131 also didn't apply and therefore the U.S. was not in "grave breach" of the treaty since the treaty itself was suspended on the order of the President. The DOJ-OLC language also states that the Geneva Conventions were signed before terrorism was a real factor, and therefore don't adequately address a "War on Terror" and therefore don't fully apply.
In other words, the President determined GPW3 didn't apply therefore he unilaterally interpreted an international treaty and thus determined himself that he was not in violation of possible domestic War Crimes charges.
Since George Bush was recently re-elected, it's highly unlikely that any federal prosecutor will attempt to bring War Crimes charges under USC 18 § 2441 against the President or his administration.
What makes this even more onerous is that anyone who carries out Bush's orders may be committing War Crimes themselves. This is because of the "Nuremburg rule" wherein Nazi soldiers were not excused from their conduct simply because they were given orders by their government.
And that, ladies and gentleman, is how men and boys from many lands who were captured in Afghanistan were held without charge, interrogated and denied their rights as defined under the Third Geneva Convention.
Alberto Gonzales, as the President's Counsel, played a significant role in furthering this decision and this should be taken into consideration during his confirmation hearings as the next Attorney General of the United States, the man George Bush says "embodies the American dream".
This article also appears on my blog and you are humbly invited to pay me a visit there.
Pax
