Ashcroft and Gonzales Defend Torture Program
Dan Abrams of The Daily Beast interviewed first former AG John Ashcroft and second former AG Alberto Gonzales, and they told him that, although it may be torture now, it wasn’t torture then, and besides, it worked:
Judge Gonzales, I’m going to ask you a very direct question. And it relates to something you just said. Do you believe waterboarding is torture?
AG: Here’s what I’ll say. I think that the U.S. government provided advice to CIA interrogators based upon the best legal reasoning by the lawyers in the Department of Justice. Was it torture, when that advice was given? No. Were the interrogations harsh? Yes. Did they save lives? Absolutely.
[Applause]
Did they get it right? I’m asking your legal opinion. Waterboarding is—they define it in all the memos how waterboarding is defined—and if we need it defined I’m happy to read from it—how torture is defined. Do you think legally that waterboarding is torture?
AG: Dan, when I served in the administration, the position of the administration was that under certain conditions and circumstances, this technique would be lawful.
Abrams asks if the lawyers got it wrong:
JA: I don’t think they got it wrong. It’s different now.
It’s different in what sense?
JA: Because the law has been changed. [John Ashcroft called me after the event to correct a mistake he made. He wanted to let me know that, in retrospect and after conducting more research on the matter, he realized that no such change in the law was ever enacted.]
The definition of torture?
JA: Yes! The definition of torture.
So the answer then, it sounds like, is the only reason you still believe the legal assessment was correct was because there’s been a change in the law?
JA: I believe that the work of the department by these professionals came to the right conclusion.
That waterboarding is not torture.
JA: That, as described, and as commented on in their memorandum, that it was not torture.
Abrams asks if it was a close call:
So let me ask, in your view, this was a close call. It sounds like you’re saying this was a close call because there was a legal judgment made, and you think that they made the right call.
AG: It was a very close call. These are very, very difficult issues.
Okay, so let’s review what we’ve learned here (or, at least, what I’ve learned):
- Waterboarding was not torture then. It may be torture now, but it wasn’t torture then.
- It was almost torture. But it wasn’t torture.
- It was harsh, almost torture, but not torture, and it saved lives. Absolutely, it saved lives. No question. And Alberto Gonzales has the right security clearance, so you know when he says it saved lives, it saved lives. You can’t say it didn’t. You didn’t see the classified reports. You are not going to see the classified reports. He did see the classified reports. And he is here to tell you: Those interrogations, which were harsh, but not torture, at least not back then, saved lives.
- Legally, waterboarding is torture. But when Alberto Gonzales served in the administration, the administration decided that under certain conditions and circumstances, waterboarding would be legal. And fortunately, their use of waterboarding met those conditions and circumstances.
- The lawyers did not get it wrong. It was different then. It’s different now. They passed a law.
- Errr, I’m sorry, that’s wrong. I just double-checked. The law didn’t change.
- It was a close call; it was almost torture, but it wasn’t torture.
6 Responses to “Ashcroft and Gonzales Defend Torture Program”
I think it being a close call is really the issue. It looks like Bush tasked the attorneys to define torture in such a way that the US could interrogate right up to the definition of torture but not actually meet it. To me that would be the key issue in any investigation or criminal proceeding, namely was the definition decided on so unreasonable or heinous that it amounted to misconduct or a crime.
I can't see how anything has changed legally. The only real change is the difference of opinion from Bush to Obama.
I know the intent of this post was to portray Gonzales and Ashcroft in a bad light, and yes Ashcroft's mention of a change in the law was incorrect (although he did correct himself), but overall I think this demonstrates how tough it will be to make a meaningful determination of legality and responsibility.
Oh, definitely, very, very tough. I think you're right that Bush “tasked the attorneys to define torture in such a way that the US could interrogate right up to the definition of torture but not actually meet it.” Some might say that you can't define torture in such a way that it doesn't meet the definition of torture, because by definition, a definition is a definition and you can't define a definition so it's almost that definition but not really that definition. And I can see that point. But look how skillfully they did it. If they had gone literally a hair further in how many waterboarding sessions they permitted, or if they had allowed the interrogators to stuff Abu Zubaydah inside a pitch black box and leave him there for, say, 18 hours instead of 12 hours, they would have tumbled right over that borderline. But they knew exactly how to slice each technique so it almost met the definition of torture but not quite.
Take a look at the definition of torture in the Convention Against Torture, and you'll see how brilliantly the Bush lawyers defined torture in such a way that it didn't meet the definition of torture:
The key words there are severe pain and suffering, and intentional infliction of. If there is no intent to inflict severe pain and suffering, therefore, and even more to the point, if the pain and suffering isn't severe, then it's not torture. Of course, it has to be just uncomfortable enough for the detainee to be willing to tell the interrogator whatever he wants to know in order to end the mild pain and suffering, without being SO uncomfortable that it becomes, really, severe, you know, severe enough for the detainee to be willing to tell the interrogator whatever he wants to know in order to end the pain and suffering which is not mild, but severe.
And how they did that, you know, was they (the lawyers, that is) told the interrogators that if they did not intend to inflict this pain and suffering, and if this pain and suffering they inflicted (but not intentionally) was only mild, and not severe, then hanging a detainee from hooks in the ceiling for several days might come right up to the edge of meeting the definition of torture, but would not actually meet it.
Really, you hit the nail right on the head when you said it's going to be very tough to make a meaningful determination of legality and responsibility. How can you prove legally that someone intended to cause severe pain and suffering by putting a towel around his neck and using it to smash him against a wall over and over? If they say they did not intend that action to cause severe pain and suffering, then how can you prove they did? And how can you prove that smashing someone into a wall repeatedly causes severe pain and suffering if the interrogators certify that it doesn't?
This really is going to be a tough nut to crack.
Hey thanks for the sarcasm. Kathy what seems obvious to you and I will not be so obvious when it's a bunch of lawyers wrangling. Anyway after thinking this over the past couple of weeks I actually agree with you that investigations would be the right thing to do, although I have zero confidence in our Congress and media to keep it from turning into a circus. I don't think it's going to be as clear cut as you do though, and I think assigning responsibility will be difficult.
The question for me has been whether the good any hearings would do would outweigh the damage, but I do agree with you the methods used warrant an investigation.
DaGoat
I've said it before and I'll say it again, water boarding was torture enough to hang people by our government after WW2. The only people who see water boarding as a 'close call' are the people who planned, condoned, and employed water boarding as a torture technique.
The moment that politics trump justice, a country is damned.
Well, you took it in pretty good spirit, DaGoat.
Seriously, though, it really is not all that complicated. The definition of torture is pretty clearcut, and the argument AG and JA were making in this interview — that they went up to the border of torture but not over it, is not going to work if there are prosecutions. There's no such thing as “torture lite.” There's no such thing as defining torture in such a way that it doesn't violate the prohibition against torture. Torture is torture. It either is or it isn't. And what was authorized and done in the CIA interrogation program was torture according to every known legal definition.
Good, we're done with the swine flu and 911-airforce-one-joyride fear diversions and back to the subject they wanted us to forget about.