Even before he came to Washington as chief legal counsel to President George W. Bush, Alberto Gonzales demonstrated a penchant for finding ways around international law.
In the burgeoning Abu Ghraib prison scandal, Gonzales has surfaced as the author of one highly controversial memo and co-author of a second, both of which raise serious questions as to whether the president authorized or condoned the use of torture, a war crime under the Geneva Conventions. Although the president said he's only approved actions consistent with U.S. and international law, that hasn't settled the matter because the main thrust of the memos crafted by Gonzales as well as Justice, Defense, and intelligence agency lawyers, seems to have been to come up with justifications for torture within the law. It remains to be determined whether these memos, individually or collectively, provided the legal go-ahead for the policies that culminated in the abuses at Abu Ghraib.
The president also said he couldn't remember if he'd seen legal opinions written by Justice Department and Pentagon lawyers.But it may prove more difficult for him to deny having seen a January 2002 "Memorandum for the President" in which Gonzales argued that the Geneva Conventions were "obsolete" and that by disregarding them the administration would substantially reduce its vulnerability to "criminal prosecution under the War Crimes Act," which he noted could incur a death sentence.
Curiously, it was in his role as legal counsel to then-Gov. Bush that Gonzales penned yet another memo pertaining to international law, only in that case his advice was designed not to avoid death sentences, but rather to expedite them on Texas' heavily populated death row. On June 16, 1997, Gonzales first showcased his proclivity for torturing international law when he sent a letter to the U.S. State Department in which he argued that, "Since the State of Texas is not a signatory to the Vienna Convention on Consular Relations, we believe it is inappropriate to ask Texas to determine whether a breach … occurred in connection with the arrest and conviction" of a Mexican national. Or, put another way, he asserted that an international treaty just didn't apply to Texas.
The Mexican in question, Irineo Tristan Montoya, was a fisherman convicted of brutally stabbing and murdering John Kilheffer in Brownsville, Texas, in 1985. Tristan, who insisted he was innocent, was executed two days after Gonzales sent his memo to State, despite protests from the Mexican government. Mexico alleged that Texas had violated Tristan's rights under the Vienna Convention because it had failed to inform the Mexican consulate at the time of his arrest.
The Vienna Convention, ratified by the Senate in 1969, was designed to ensure that foreign nationals accused of a crime are given access to legal counsel by a representative from their home country. In the absence of a lawyer and without access to Mexican authorities, Tristan, who neither spoke nor understood English, signed a confession that he later said he believed to be an immigration document.
The U.S. State Department has periodically expressed concerns about violations of this treaty by state police because it wants foreign governments to honor the treaty when they arrest Americans. Oklahoma Gov. Brad Henry cited his concern for "protecting the rights of Americans abroad" last month when he commuted the sentence of Mexican national Osbaldo Torres to life in prison.
Similarly, the United States is a signatory to international treaties barring torture, not only because it is deemed inconsistent with our traditions, but to prevent the torture of Americans arrested abroad. In a memorandum to the White House in January 2002, Secretary of State Colin L. Powell argued that ignoring proscriptions on torture would "reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops."
Following Tristan's execution, Bush's office released a statement that read, in part: "Gov. Bush assures the people of Mexico that Mr. Tristan had [a] fair trial, ample opportunity to be heard and the full protections of the Constitution and laws of the United States of America."
That was not entirely true, however, because Bush and Gonzales apparently believed that international law, as embodied in the Vienna Convention, was somehow inapplicable to Texas. It would be difficult to find an international law expert who agreed with Gonzales' legal analysis, due in no small part to Article 6 of the Constitution, which states that, "... all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Supreme Court precedent dating to 1804 establishes that states are bound by U.S. treaties.