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.
Where Gonzales' analysis of the Geneva Conventions set out to rationalize torture of al-Qaida and Taliban prisoners, the president's top attorney had similarly pragmatic considerations in mind back when it came to dodging the Vienna Convention. Gonzales favored ignoring the latter because he knew that Texas police had probably violated the treaty's reporting requirement in hundreds if not thousands of arrests, and that any concession to international law in the Tristan matter might have unforeseen consequences for other cases. This proved rather prophetic.
Two years later, U.S. Secretary of State Madeleine Albright weighed in on the Vienna Convention as Texas prepared to execute a Canadian national, Joseph Stanley Faulder. In a letter to the Texas Board of Pardons and Paroles, Albright wrote: "I am deeply troubled by the failure of consular notification in this case. Texas has conceded that the [Vienna Convention's] requirement of consular notification was violated. … It is clear that, but for these failures, Canadian consular officials would have visited Mr. Faulder in prison and offered him assistance … when such assistance would have been critical."
There were other problems with the Faulder conviction, among them that the state had paid its chief witness more than $10,000 and that Faulder's prosecutor was literally paid for by the victim's family—a judicial innovation apparently unique to Texas. In an "execution summary" he prepared for Bush, Gonzales acknowledged the violation of the Vienna Convention, but concluded that it was "harmless error." Faulder was executed on June 17, 1999.
For his part Bush suggested at the time that the main message of the Faulder case was, "People can't just come in our state and cold-blood murder somebody." Unmoved by the violation of international law, Bush simply chose to disregard it and get on with the execution. During his tenure as governor, Bush signed off on 152 executions. He commuted only one death sentence to life when it became clear that the condemned man could not have committed the murder for which the state was preparing to execute him.
In March of this year, the International Court of Justice in The Hague issued a stunning rebuke to the United States under the Vienna Convention, ruling that we had violated the rights of 52 Mexicans on death row, including 15 in Texas, and ordering their cases to be reviewed. It was too late for Tristan, however; Bush signed off on his execution seven years earlier.
Gonzales' legal advice in both the Faulder and Tristan cases suggests that, in matters of life and death, he viewed international law and Article VI of the Constitution as irrelevant to Texas or, at best, inconveniences that might easily be circumvented by legal assertions grounded in shaky reasoning. Gov. Bush apparently agreed.
Much more will be at stake if Gonzales' interpretation of the Constitution and international law is allowed to take root in the loosely defined war on terrorism. With the U.S. image worldwide at what may be an historic nadir, it is hard to imagine how a decision by the president to abrogate one of the cornerstones of international human rights law would either enhance that image or encourage other nations to shoulder any of the costs of the ongoing Iraq adventure. In the end, however, what is most important is what these memos say about who we are as a nation. If the president has, in fact, rationalized a decision to abandon the Geneva Conventions on Prisoners of War and the U.N. Convention Against Torture for the poisoned promise of torture, he should explain to the American public how that squares with this country's commitment to the most fundamental principles of justice and decency.