Marjorie Cohn: No War Criminal for Supreme Court

No sooner had the ink dried on Sandra Day O'Connor's resignation letter than the right-wing evangelicals began shouting threats: Bush had better pick a justice who would decimate the right to abortion as we know it. And corporate lobbyists promised to fight hard for a justice who would insulate big business from punitive damages, and against state regulation to protect consumers and the environment.

But most of the post-O'Connor discussion about possible candidates has focused on the bona fides of Bush's Attorney General and confidant Alberto Gonzales, whom many describe as a "moderate." The religious conservatives find Gonzales unacceptable, since he refused to say that Roe v. Wade should be reversed when he sat on the Texas Supreme Court. Senate Democratic leader Harry Reid, however, thinks Gonzales is "qualified" to sit on the high court. Indeed, Reid chastised "the far right" for attacking Gonzales.

In their zeal to ensure that Bush does not choose a justice who would tip the court's balance away from allowing a woman to make decisions about her own body without governmental interference, many Democrats would apparently settle for a war criminal. In spite of opposition from the right and the left, Gonzales is expected to be confirmed easily, without the necessity of the nasty filibuster.

Several senators posed hard questions to Gonzales during his attorney general confirmation hearing. Ultimately, however, the Senate confirmed Gonzales 60-36, with 4 abstentions. Six Democrats voted to confirm Gonzales and 3 didn't cast votes. Curiously, Reid, who voted against Gonzales for attorney general, now finds him qualified to sit on the nation's highest court.

When Senator Richard Durbin asked Gonzales at his hearing, "Can US personnel legally engage in torture under any circumstances?", Gonzales failed to give a categorically negative answer. "I don't believe so," he testified, "but I'd want to get back to you on that." Gonzales surely knew that the Convention against Torture, which the United States has ratified, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."

Gonzales is the very one who, as White House counsel, advised Bush that the President need not follow the law. The Geneva Conventions, which Gonzales called "quaint" and "obsolete," are ratified treaties, and thus part of United States law under the Supremacy Clause of the Constitution.

Gonzales also counseled Bush on how to avoid prosecution for war crimes under the federal War Crimes Act.

Gonzales commissioned the August 1, 2002, memorandum by the Department of Justice's Office of Legal Counsel that illegally redefined torture so narrowly that the pain caused by interrogation must include death, organ failure or serious impairment of body functions. Any treatment short of that would be allowed.

That memo remained in place until December 30, 2004, on the eve of Gonzales's attorney general confirmation hearing. In order to forestall tough questioning of Gonzales by Democrats on the Senate Judiciary Committee about the August 2002 memo, the Justice Department issued a new memo, broadening the definition of torture.

Gonzales's advice to Bush led to the establishment of policies that set the stage for the torture and inhuman treatment of prisoners in US custody in Iraq, Afghanistan, Guantánamo Bay, and secret CIA prisons throughout the world. Torture and inhuman treatment constitute war crimes under the federal War Crimes Statute. That law provides that one who commits a war crime "shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."

It is not necessary to personally conduct the torture in order to be liable under the War Crimes Statute. Under the well-established doctrine of "command responsibility," a superior who knew or should have known his inferiors would commit war crimes, but who failed to stop or prevent those acts, is just as responsible as those who committed the criminal acts. Gonzales knew or should have known the policies he advocated would result in the torture and inhuman treatment of prisoners in US custody.

Alberto Gonzales should not sit on the United States Supreme Court. He should be indicted and tried as a war criminal. (See The Gonzales Indictment.)

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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