ALBERTO R. GONZALES was a vague, unresponsive and misleading

washingtonpost.com
A Degrading Policy
Wednesday, January 26, 2005; Page A20

ALBERTO R. GONZALES was vague, unresponsive and misleading in his
testimony to the Senate Judiciary Committee about the Bush
administration's detention of foreign prisoners. In his written answers
to questions from the committee, prepared in anticipation of today's
vote on his nomination as attorney general, Mr. Gonzales was clearer --
disturbingly so, as it turns out. According to President Bush's closest
legal adviser, this administration continues to assert its right to
indefinitely hold foreigners in secret locations without any legal
process; to deny them access to the International Red Cross; to
transport them to countries where torture is practiced; and to subject
them to treatment that is "cruel, inhumane or degrading," even though
such abuse is banned by an international treaty that the United States
has ratified. In effect, Mr. Gonzales has confirmed that the Bush
administration is violating human rights as a matter of policy.

Mr. Gonzales stated at his hearing that he and Mr. Bush oppose "torture
and abuse." But his written testimony to the committee makes clear that
"abuse" is, in fact, permissible -- provided that it is practiced by the
Central Intelligence Agency on foreigners held outside the United
States. The Convention Against Torture, which the United States ratified
in 1994, prohibits not only torture but "cruel, inhumane or degrading
treatment." The Senate defined such treatment as abuse that would
violate the Fifth, Eighth or 14th amendments to the Constitution -- a
standard that the Bush administration formally accepted in 2003.

But Mr. Gonzales revealed that during his tenure as White House counsel,
the administration twisted this straightforward standard to make it
possible for the CIA to subject detainees to such practices as sensory
deprivation, mock execution and simulated drowning. The constitutional
amendments, he told the committee, technically do not apply to
foreigners held abroad; therefore, in the administration's view the
torture treaty does not bind intelligence interrogators operating on
foreign soil. "The Department of Justice has concluded," he wrote, that
"there is no legal prohibition under the Convention Against Torture on
cruel, inhuman or degrading treatment with respect to aliens overseas."
According to most legal experts, this is a gross distortion of the law.

The Senate cited the constitutional amendments in ratifying the treaty
precisely to set a clear standard that could be applied to foreigners.
Nevertheless, Mr. Gonzales uses this false loophole to justify practices
that contravene fundamental American standards. He was asked if there
were any legal prohibition against U.S. personnel using simulated
drowning and mock executions as well as sleep deprivation, dogs to
inspire fear, hooding, forced nudity, the forced injection of
mood-altering drugs and the threat of sending a detainee to another
country for torture, among other abuses. He answered: "Some might . . .
be permissible in certain circumstances."

This is not a theoretical matter. The CIA today is holding an
undetermined number of prisoners, believed to be in the dozens, in
secret facilities in foreign countries. It has provided no account of
them or their treatment to any outside body, and it has allowed no
visits by the Red Cross. According to numerous media reports, it has
subjected the prisoners to many of the abuses Mr. Gonzales said "might
be permissible." It has practiced such mistreatment in Iraq, even though
detainees there are covered by the Geneva Conventions; according to
official investigations by the Pentagon, CIA treatment of prisoners
there and in Afghanistan contributed to the adoption of illegal methods
by military interrogators.

In an attempt to close the loophole, Sen. Richard J. Durbin (D-Ill.),
Sen. John McCain (R-Ariz.) and Sen. Joseph I. Lieberman (D-Conn.) sought
to attach an amendment to the intelligence reform legislation last fall
specifying that "no prisoner shall be subject to torture or cruel,
inhumane or degrading treatment or punishment that is prohibited by the
Constitution, laws or treaties of the United States." The Senate adopted
the provision unanimously. Later, however, it was stripped from the bill
at the request of the White House. In his written testimony, Mr.
Gonzales affirmed that the provision would have "provided legal
protections to foreign prisoners to which they are not now entitled."
Senators who supported the amendment consequently face a critical
question: If they vote to confirm Mr. Gonzales as the government's chief
legal authority, will they not be endorsing the systematic use of
"cruel, inhumane and degrading" practices by the United States?

© 2005 The Washington Post Company
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