Strange Affairs

The world, dear Agnes, is a strange affair.

Molière, L’Écoles des Femmes

Friends change over time. Consider Albert Gonzales and the FBI. Prior to Judge Roberts’s nomination, liberals were hoping Albert Gonzales would be Mr. Bush’s nominee for the vacant seat on the United States Supreme Court. At the same time the FBI was showing itself to be the friend of human rights by showing that it, if not the military, knows torture when it sees it.

Mr. Gonzales was not always the liberals’ hero. It was he, after all, who commissioned and approved the memorandum written by Jay Bybee (a man a short time later given the equivalent of sainthood when George Bush nominated him to become a judge on the 9th Circuit Court of Appeals where he now serves). In his memorandum Mr. Bybee said, among other wildly astonishing things, that a coercive procedure cannot be considered torture unless it causes pain equivalent to that accompanying “serious physical injury, such as organ failure, impairment of bodily function or even death.”

When Mr. Gonzales was presented with a legal opinion he disliked that said civilian and military prisoners in Iraq were all protected persons under Article 49 of the Fourth Geneva Convention and could not, therefore, be transported to countries where torture was an accepted way of obtaining information, he sought and received a second opinion more to his liking. It said prisoners could be taken out of the country for interrogation for a “brief but not indefinite period” and persons who are “illegal aliens” under “local immigration law” could be permanently removed.

While serving as counsel to then Texas Governor Bush, Mr. Gonzales proved himself as great a friend to the death penalty as he would later be to torture. Describing his conduct in that role, Alan Berlow, a Washington based writer who writes frequently on death penalty issues, observed in a July, 2003 article written for the Atlantic Monthly that Mr. Gonzales “repeatedly failed to apprise the governor of crucial issues in the cases he reviewed with the governor before the death penalty was permitted to be imposed including such matters as: “ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.” In the case of Carl Johnson who was executed on September 19, 1995, Mr. Gonzales did not bother to point out to the governor that Mr. Johnson’s trial lawyer had slept through much of the jury selection.

At the time of his nomination to be attorney general, many were appalled. Many of the many today hope that if another Supreme Court vacancy occurs he may be nominated by President Bush. A fair question would be why. The answer would be, consider the alternatives. That says more about Mr. Bush than it does about the many.

In another sign of changing times, the FBI has befriended human rights, a friendship with which it was not always associated. FBI internal memoranda going back to 2003 have played an important role in the senatorial inquiry into mistreatment of prisoners at Guantanamo. They have demonstrated that the FBI knows torture when it sees it, unlike either army General Bantz Craddock, the head of the Southern command who is responsible for foreign terrorism suspects held at Guantanamo, or Air Force Lt. Gen. Randall Schmidt, who led the probe of accounts of abuse at that facility.

The FBI agents who investigated the facility wrote memoranda describing treatment of prisoners that the agents found unacceptable including, among other things, “strangulation, beatings, placement of lit cigarettes into the detainees’ ear openings and unauthorized interrogations.” The FBI was concerned about what it saw. General Schmidt was mildly concerned. General Craddock was not concerned at all.

General Schmidt agreed that at least one prisoner was subjected to “abusive and degrading treatment” although he did not think the treatment qualified as an act of torture. Nonetheless, he and his fellow investigator, Army Brig. Gen. John Furlow agreed that Army Maj. Gen. Geoffrey Miller who was then the commander of Guantanamo should be admonished. General Craddock rejected the recommendation saying the acts “did not result in any violation of a U.S. law or policy and “there’s nothing for which to hold him accountable.” He nonetheless suggested the army’s inspector general should look into it but having already concluded what the result should be, it’s hard to see what that will accomplish.

James Imhoffe, one of Oklahoma’s two gifts to the United States Senate, described the mistreatment as “relatively minor infractions.” He wondered what damage we were doing to the war effort by publicizing them. He might better wonder what encouragement we are giving the terrorists by perpetrating them. If the liberals’ newfound friend ever joins the court perhaps he’ll be able to answer the question. Detainees needn’t hope for better treatment any time soon.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu or through his website: http://hraos.com/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Christopher Brauchli is an attorney based in Boulder, Colorado.