Tuesday, November 16, 2004

Oppose Alberto Gonzales!

Originally uploaded by williac.
It's as if the Enabling Act of 1933 Germany was in force.

Bush seems to behave like someone who doesn't know, or doesn't care how people feel about his administration. His appointment of Alberto Gonzales the author of those infamous memos declaring the use of torture and humiliation to be acceptable in Iraq and Afghanistan, to the post of Attorney General of the United States, indicates a gross disregard of the Constitution, International law, and of the concept of human dignity!

Firstly, all of the Geneva Convention treaties that this country signed and ratified, were done so according to the Constitution, and therefore have the force of law. The third and fourth Geneva Conventions make no exceptions of any kind regarding torture and mistreatment. Even if a captive does not qualify for good treatment as a POW in the Third Geneva Convention, he does as a civilian of the occupied country under the Fourth GC. Article 3 of both conventions prohibits torture and humiliating and degrading treatment of any subdued and disarmed former combatant.

Both the Third and Fourth Geneva Conventions were ratified by the United States Senate, and have the force of law, federal law, in this country, and anywhere this country's military is deployed. Any violation of them is not only against international law, but is also unconstitutional. Now, if Mr. Gonzales in his memos seems to think that in the present circumstances the Third and Fourth Geneva Conventions are "quaint", then he must think that the articles of the Constitution dealing with international treaties and foreign relations are also "quaint". Is the Constitution "quaint"? Mr. Gonzales makes light of the Constitution, and of basic human rights. And he qualifies as an Attorney General?

And how will Gonzales' appointment play in foreign capitals? Although Gonzales in his January 25, 2002 memo concludes that the Secretary of State would agree that "al Qaeda and Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case following individual hearings before a military board." Colin Powell himself opposed the content of those memos. According to his memo in response:

"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."

The memo goes on to say that we would be vulnerable to "domestic and international legal challenge", that is everything from undermining the President's Military Order by removing a legal basis for trying detainees before Military Commissions, to depriving us of "a winning argument to oppose habeas corpus actions in U.S. courts".

And what about human dignity? According to Truthout.org: "Powell was right. The Geneva Conventions contain no loopholes that would allow the torture and inhuman treatment of prisoners. Even if a captive did not qualify for prisoner-of-war status under the Third Geneva Convention, he would be protected by the Fourth Geneva Convention on the treatment of civilians during wartime. And article 3 of both conventions prohibits torture, and humiliating and degrading treatment against anyone who is no longer fighting. It is well-established that article 3 applies to international, as well as internal, conflicts."

What can I say? The entire reason for this country's existence is the protection of human rights. An Attorney General that cannot protect the human rights of anyone, let alone an American, contradicts the very ideals that may have allowed a man of Gonzales' minority heritage to rise to such a post. A lot of Freedom Riders and CORE members went under the cudgel to give Hispanics the freedom, and a lot of citizens faced the firehoses and dogs to them the dignity. They must have thought it important enough to lay their lives on the line for these ideals, and for Gonzales to be nonchalant about them, and casually deprive others of the rights those ideals guarrantee is a sacrilege.

What is more chilling is that this man has already demonstrated the kind of AG he would be by his casual cruelty towards fellow Texans. As General Counsel to then Governor Bush his recommendations on clemency wer essential for Bush when it came to stays of executions for death-row inmates. In his reports to the governor, he would inexcusably omit any instance of vital evidence not disclosed to the jury that could have mitigated the case of the defendant. In 50 reports, he was able to recommend execution on 49 of them. And who got the lucky 50th? Serial killer Henry Lee Lucas. More usual was the case of Terry Washington according to Allen Burlow in the Atlantic Monthly:

"The case of Terry Washington was typical. Gonzales devoted nearly a third of his three-page report on Washington to the gruesome details of the crime. He informed Bush that the victim, Beatrice Huling, was a twenty-nine-year-old restaurant manager, and wrote, "An autopsy determined she suffered 85 stab wounds, seven of which were fatal, and was eviscerated." But the summary refers only fleetingly to the central issue in Washington's clemency appeal—his limited mental capacity, which was never disputed by the State of Texas—and presents it as part of a discussion of "conflicting information" about the condemned man's childhood. (The page containing this discussion is missing from the copy of the summary signed by Bush, raising the possibility that he never actually saw it before authorizing Washington's execution.) Most important, Gonzales failed to mention that Washington's mental limitations, and the fact that he and his ten siblings were regularly beaten with whips, water hoses, extension cords, wire hangers, and fan belts, were never made known to the jury, although both the district attorney and Washington's trial lawyer knew of this potentially mitigating evidence. (Washington did not testify at his trial or his sentencing.)

Gonzales's lack of attention to Washington's mental retardation is particularly surprising because demand was growing nationwide to ban executions of the retarded, and because the most highly publicized case of a retarded defendant, that of Johnny Paul Penry, was even then playing itself out in Texas courts. The miscarriages in the Washington case were also precisely the kind of thing Bush claimed to want to be told about. "I don't believe my role is to replace the verdict of a jury with my own," he wrote in his autobiography, A Charge to Keep (1999), "unless there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair." Such information had indeed come to light in Washington's case, yet Gonzales's memorandum did not tell Bush about it.

Not only did Gonzales ignore Washington's mental limitations, but he didn't mention that Washington's trial lawyer had failed to enlist a mental-health expert to testify on Washington's behalf (although he was entitled to one under a 1985 Supreme Court ruling), which in a death-penalty case clearly suggests ineffective counsel. Nor did he mention that ineffective counsel and mental retardation were in fact the central issues raised in the thirty-page clemency petition. Gonzales noted only that the petition had been rejected by the Board of Pardons and Paroles, a body that one federal judge condemned in 1998 for its tendency to rule on clemency appeals without any investigation or discussion among its members.

Gonzales declined to be interviewed for this story, but during the 2000 presidential campaign I asked him if Bush ever read the clemency petitions of death-row inmates, and he equivocated. "I wouldn't say that was done in every case," he told me. "But if we felt there was something he should look at specifically—yes, he did look from time to time at what had been filed." I have found no evidence that Gonzales ever sent Bush a clemency petition—or any document—that summarized in a concise and coherent fashion a condemned defendant's best argument against execution in a case involving serious questions of innocence or due process. Bush relied on Gonzales's summaries, which never made such arguments.

Did Gonzales reserve the most important issues and documents in the Washington case for a more extensive oral briefing of the governor? Only he and Bush know. It is highly unlikely, however, given that Gonzales usually presented an execution summary to the governor on the day of an execution and that, as he has acknowledged, his briefings typically lasted no more than thirty minutes—far too little time for a serious discussion of a complex clemency plea. Bush's appointment calendar for the morning of Washington's execution shows a half-hour slot marked "Al G—Execution."

Gonzales is so typical of the gung-ho prosecutor-martinet who seeks the maximum punishment no matter what mitigating circumstances may favor the defendant, the kind that has sent many a defendant to a punishment they may not have deserved. Anyone who doesn't understand the spirit of justice, has no business enforcing it.

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