A Call to Resist from Refuse & Resist!


NO to Alberto Gonzales -- Legal Counsel to Empire, Torture, and Death


Most people think nobody could possibly be worse as Attorney General than John Ashcroft. But there is someone, and President Bush has just nominated him to succeed Ashcroft. If confirmed as Attorney General, Alberto Gonzales will represent a qualitative leap toward a government freed up from all constrains of justice, humanity and law.


It is urgent now that everyone raise their voices against this outrageous appointment, demand that the Senate not confirm Gonzales, and say a loud "No" to Bush’s claim of a mandate endorsing his moves for a razor-wire police state.


The principal activity of Gonzales at the White House has been to counsel the President on how to commit crimes against humanity and get away with it. The Counsel to the President is the President’s official lawyer -- the person the President turns to for quiet advice when he has a question about whether some proposed action is legal. Or, more to the point, the person to whom the President turns to ask, “can I get away with this?”


Gonzales’ advice is supposed to be confidential, but two of his memos of advice have been so outrageous that they have leaked to the press. As the war for the greater American empire rolled across Afghanistan and Iraq, two “legal problems” were vexing the President. The first problem was the War Crimes statute (18 USC §2441) that makes it a crime for any member of the U.S. military to commit war crimes as defined in the Geneva Conventions. The second problem was the Anti-Torture statute (18 USC §2340-s340A) that makes it a crime for any U.S. national to engage in the torture of prisoners. This latter statute even provides for the death penalty if the victim of torture is killed.


First of all, it will come as a surprise to most Americans that there are such laws. In fact, the government has hoped to keep them hushed up. The War Crimes statute and the Anti-Torture statute were passed in the 1990s because the U.S. had signed international treaties against war crimes and torture that required the government to pass such “implementing legislation.”


The weighty “moral problem” facing the President was how to order members of the U.S. military to carry out war crimes and torture, and yet protect those carrying out his orders from prosecution under these U.S. laws. The man who, unburdened by morals, provided the answers was Alberto Gonzales. His answer was to simply deny that the Geneva Convention applied to prisoners captured by the United States.


On the question of how to avoid the strictures of the Geneva Convention on the treatment of prisoners, Gonzales provided the President with several rationales. First, he argued that members of al-Qaeda and the Afghani Taliban should not be considered as prisoners of war at all, precisely because this might increase the possibility of U.S. personnel being prosecuted for violation of the Geneva Convention on the humane treatment of prisoners.


His second rationale was even more ominous. He argued that these prisoners should not be considered prisoners of war because “it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.” Translated into English, that means, “we may want to torture a lot of these guys.”


His third argument for ignoring the Geneva Convention on the treatment of prisoners was that “it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441.” Translated again, this means, “We might get caught by someone down the road!”


Well before the shocking pictures from Abu Ghraib hit the headlines, Gonzales was hard at work advising the president on how to dodge the U.S. laws against torture. In a memo dated August 1, 2002, Gonzales summarized his findings as follows:


“We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention [Against Torture]. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture.”


OK, Alberto, we give. Just how intense would the pain have to be to fall within the meaning of the law? Gonzales helpfully provides President Bush with the answer: “Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Well, that certainly clears it up. Now we can see that putting electrodes on people’s genitals is not torture under U.S. laws, but crushing him to death in a garbage compactor might be.


Gonzales goes on to add “We find that in the circumstances of the current war against al-Qaeda and its allies, prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war.” In others words, don’t worry, Chief, the law doesn’t apply to you anyway.


This is the man that President Bush now proposes to be the new Attorney General, the government official most responsible for the enforcement of the laws and the protection of the rights of the people. This then is what Bush meant when he said that he had earned “political capital” in the recent election, and now he intends to spend it.


All this gives new urgency to Refuse & Resist!’s call to establish “Fascist Free Zones” throughout the country; places of sanctuary and community solidarity. Having these kinds of spaces of resistance is part of building a society-wide culture of resistance and a component of fighting the repression. 


Finally we should add a word about where this vampire, Gonzales, came from. He followed Bush into the White House as Counsel to the President, after playing a similar role for Bush when he was governor of Texas. In that position, Gonzales advised Bush on applications for clemency coming from people on Texas’ oversize death row. As of July 2000, Bush had already executed more people than any living governor.


Writing in the Atlantic, author Alan Berlow, reviewed a number of these cases. In summarizing the cases for Bush, Gonzales systematically omitted key details that would argue for clemency. Instead, he summarized the evidence against the death row inmate and played up the gruesomeness of the alleged crime.


Although the Supreme Court belatedly held (in 2002) that executing the mentally retarded was unconstitutional, Gonzales in earlier cases summarized for Bush blithely omitted mention of the mental condition of the appellants. For example, in the case of Terry Washington, executed by Texas in 1997 with Bush’s sanction, the Gonzales memo to Bush ignored the fact that Washington had the mental age of a six-year-old and that his lawyer failed to even call for expert testimony of mental incapacity at Washington’s trial.


We urgently call on you to join Refuse & Resist! in saying NO to Gonzales!


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Written for Refuse & Resist! by C. Clark Kissinger

November 10, 2004