New vistas in humanitarian law from Alberto Gonzales: Waterboarding, the process in which a detainee is forced to believe he is drowning, may not be “beyond the bounds of human decency.”
Senators Dick Durbin and Ted Kennedy pointed out that the executive order President Bush issued on Friday on CIA interrogations interpreting Common Article 3 of the Geneva Conventions specifies certain activities for outright banning due to their contravention of “human decency”: sexual humiliation or the threat thereof, or religious denigration, for instance. Why, then, the senators asked, doesn’t the order specify prohibitions on suspected interrogation techniques that military judge-advocates general have testified are also contraventions of the convention — namely, threatening detainees with dogs, prolonged stress positions, forced nudity, mock executions and waterboarding?
Gonzales, going way further than intelligence chief Mike McConnell has, said that some of those measures are “possible techniques used by the CIA,” even after the executive order. It wasn’t confirmation, by any stretch, that waterboarding will still occur. But in response to the specific question, Gonzales told Kennedy that “some acts are clearly beyond the pale, and that everyone would agree should be prohibited. … There are certain other activities where it is not so clear, Senator, and again, it is for those reasons that I can’t discuss them in a public session.” The order, naturally, received DoJ review before it was finalized.
There you have it, from the nation’s “top cop”: waterboarding and mock executions don’t “clearly” shock the conscience.
KENNEDY: Did the department review the executive order…
GONZALES: Yes.
KENNEDY: … (inaudible) put out?
GONZALES: As a matter of custom we would do that, yes.
KENNEDY: OK.
And did you produce any memoranda or any other documents assessing the legality of the order?
GONZALES: Senator, I don’t know.We certainly provided advice, yes, about the order. I can’t tell you whether or not we provided a legal document…
(CROSSTALK)
KENNEDY: Can you make those available to the committee? Can you make those available about the department’s analysis of…GONZALES: I will take that back and see what we can do, Senator.
KENNEDY: In the particular document, at paragraph E, it mentions certain activities by definition that violate human decency. It specifies those.
It says in paragraph E, “outrageous acts of personal abuse, done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency.”
Then it specifically prohibits certain activities. Certain activities are prohibited in the executive order.KENNEDY: It says, “such as sexual or sexual indecent acts undertaken for the purposes of humiliation.” Those are prohibited. It says, “forcing the individual to perform sexual acts or to pose sexually.” Those are prohibited. “Threatening the individual or sexual mutilation, or using the individual as a human shield,” those are prohibited. “Acts intended to denigrate the religion, religious practices or religious option,” they are prohibited.
So the question is, why aren’t you willing — if those are prohibited, why aren’t you willing to prohibit the other kinds of activities that were outlined earlier in terms of the waterboarding, in terms of stress, dogs, nudity, mock executions?
GONZALES: Senator…KENNEDY: If you prohibit these activities, why don’t you prohibit those?
GONZALES: Senator, there are certain activities that are clearly beyond the pale and that everyone would agree should be prohibited. And so, obviously, the president is very, very supportive of those actions that are identified by its terms in the executive order.
There are certain other activities where it is not so clear, Senator. And, again, it’s for those reasons that I can’t discuss them in the public…KENNEDY: Well, the only point — and it’s been made superbly by my colleague, Senator Durbin — what you’re basically saying to this committee and the rest of the world that these acts which are mentioned in the executive are prohibited, but these other activities — the five other activities which have been the subject of a good deal of our own hearings and we talked about your confirmation problems — are not. They don’t rise to the point where they are prohibited.
