Economic and Political Weekly March 12, 2005 1009

VINAY LAL

On February 3, 2005, AlbertoGonzales was confirmed by theUnited States senate, the most

powerful legislative body in the worldwhere gentlemen (and a few ladies) dotheir best, as the next attorney general.One of his many supporters in the senate,Judd Gregg, rose to declare Gonzales “anAmerican success story”, an inspiringexample of “the American way to rewardability”.1 The white establishment, ofwhich the United States Senate – an ob-scenely wealthy body that, in its historyof over 200 years, has seen only threeAfrican-Americans admitted to its mem-bership – remains the supreme example,has found in Gonzales the perfect posterboy to trumpet, as politicians do on everyoccasion in the US, the allegedly uniquequalities of the American dream and theUS experiment in multiculturalism. Oneof eight children of poor Mexican immi-grants, Gonzales earned a law degree fromHarvard Law School, and eventuallygained the attention of George W Bush,who as governor of Texas took him intohis confidence and raised him to the officeof the General Counsel (1975-77) andthen to the position of the secretary of stateof the Texas. When the presidency fell into

Bush’s lap, the loyal Gonzales was re-warded with the position of White HouseCounsel. Now, as attorney general of theUnited States, Gonzales has attained aposition never before equalled by anyHispanic. That is certainly no meanachievement, particularly in view of thefact that the various Hispanic communities,among them Mexicans, Guatemalans, andSalvadoreans, have encountered moredifficulties in raising their socio-economicstatus than most other non-Hispanic im-migrant groups in the US.

Gonzales’s admirers regard him as thelatest, and most prominent, instantiationof the obstinately held view that the UnitedStates remains distinct in its ability tofurnish extraordinary upward mobility todisadvantaged groups and entrepreneurialindividuals. The numerous guises underwhich American exceptionalism operatesare so well known as to be scarcely worthyof comment. What is far more noteworthyabout Gonzales’s political ascendancy isthat the position of the attorney general,who is the chief law enforcement officerof the nation and one charged with up-holding the country’s compliance withthose international treaties and conven-tions to which the US is a signatory, shouldhave been offered to a man who, in thecourse of the last decade, has repeatedly

shown himself not only to be bereft ofelementary notions of justice, but has justlyearned opprobrium for turning torture intothe law of the land.2 The bare facts, how-ever well known, merit repetition. Some-time after the September 11, 2001 attacks,Gonzales received a query from CIAofficials who were concerned that someof their operatives acting in Afghanistanmight be subject to criminal prosecutionfor engaging in interrogative methods thatclearly were not permitted under either USlaw or the Geneva Conventions. In amemorandum addressed to Bush onJanuary 25, 2002, Gonzales gave it as hisconsidered opinion that the Geneva Con-vention III on the Treatment of Prisonersof War did not apply in the conflict withthe Taliban and Al-Qaida. The “new war”the United States had entered into hadcreated a “new paradigm” that rendered“obsolete Geneva’s strict limitations onquestioning of enemy prisoners”. Many ofthe Convention’s other provisions,Gonzales opined, were ‘quaint’, just assome of its language, such as the prohi-bitions against ‘inhuman treatment’ and‘outrages upon human dignity’, were‘undefined’. Gonzales described himselfas unpersuaded by arguments that GenevaConvention III ought to apply in the waron terror and noted that some of the enemiesof the United States had been undeterredby the Convention’s prohibitions.3

In other words, Gonzales signified toBush that, in his capacity as commander-in-chief, he did not have to accept anylimitations on his war powers; he couldalso legally authorise the application ofunusual interrogative techniques. Still,questions remained about how torture wasto be construed under these circumstances,and Gonzales solicited an opinion fromthe Office of Legal Counsel in the Depart-ment of justice. He received a memo inAugust 2002 signed by Jay S Bybee, theassistant attorney general who, not sur-prisingly for an administration that hasdistinguished itself by rewarding thosewho unfailingly do its bidding, was shortlythereafter elevated to a federal judgeship.The ‘Bybee memorandum’ states that foran act to constitute torture, “it must inflictpain that is difficult to endure. Physical painamounting to torture must be equivalentin intensity to the pain accompanying

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Torture: An AmericanSuccess StoryPart of the extraordinary success of the US democracy residesin the fact that its political rituals preclude any real possibility ofthe emergence of dissent and are designed to reinforce conformityand consensus. The singular fact remains that well over 95 percent of all presidential nominees to cabinet-level positions in thecourse of American history have been confirmed by the senate,and Alberto Gonzales’s confirmation as attorney general was aforegone conclusion. In many other countries, the disclosures thathave taken place about Gonzales’ approving the use of torturemight not have been at all possible. But is it not more scandalousthat, knowing all that the American public does know aboutGonzales and his ilk, it should make no difference. Torture nowjoins the never-ending list of American success stories.

Economic and Political Weekly March 12, 20051010

serious physical injury, such as organfailure, impairment of bodily function, oreven death.” Thus, as Bybee argued, the“mere infliction of pain or suffering onanother” – let us accent the ‘mere’ – cannotbe construed as torture, whatever thecommon, not to mention legal, understand-ing of torture might be among individualsand nations at this juncture of history.Bybee, moreover, clearly thought the Con-vention Against Torture (1987), an inter-national agreement which the US is swornto uphold, as not worthy of respect. “Noexceptional circumstances whatsoever,”Article 2 of the Convention states in part,“whether a state of war or a threat of war,internal political instability or any otherpublic emergency, may be invoked as a justi-fication of torture”. Yet, as Bybee statedin the preamble to his memorandum, anyprosecutions under Sections 2340-2340Aof title 18 of the United States Code,sections which implement the provisionsof the Convention Against Torture, couldnot be countenanced since they would“represent an unconstitutional infringementof the president’s authority to conductwar.” In the prosecution of the war onterror, nothing could be allowed to fetter

the president, in his capacity as commander-in-chief, from exercising a free hand.

Gonzales not only never repudiated theBybee memorandum, but sought to makeit the law of the land. Neither he, nor anyof his subordinates or superiors, everexpressed any misgivings about the crueland ingenious interrogation tactics whichhad been pursued in Afghanistan andGuantanamo before they were applied inIraq, and it is only the public disclosureof the excesses at Abu Ghraib whichbrought the spotlight on him and what can,without exaggeration, be called the regimeof torture that had almost effortlessly beeninstalled in Washington and the variousoutposts of the gargantuan Americanmilitary machine. Whatever has beenaverred on his behalf by his patrons andadmirers, his confirmation hearings sug-gest that Gonzales remains both whollyunrepentant as well as entirely confidentthat support for his views persists in vastsections of the American leadership andamong those in the public who view theactions of the Bush administration withapprobation. Adverting to the Bybeememorandum, senator Patrick Leahy askedGonzales, “Did you agree with that

conclusion?” As the exchange continued,Gonzales sought to provide the ‘context’,and then stated: “I don’t recall todaywhether or not I was in agreement withall of the analysis, but I don’t have adisagreement with the conclusions thenreached by the department”.4 ThatGonzales should, in the aftermath of AbuGhraib, have found it altogether unneces-sary to disassociate himself from a policydeserving of outright condemnation istestimony to the fact that he rightly anti-cipated that such a disclosure would haveno adverse consequences for him.

What, then, should we make ofGonzales’s story? Those nations that havefrequently taken recourse to torture toextract confessions and information fromprisoners never required a green light fromthe United States to persist with theirnefarious style of politics. The intelligenceand police forces of not only dictatorshipsand other authoritarian regimes, but evendemocracies such as India have carried outtorture with impunity, but now that torturehas been condoned by people in the high-est positions in the US, one can be certainthat many nations will feel encouraged toignore whatever little constraints they may

Economic and Political Weekly March 12, 2005 1011

have observed. To argue this is not toconcede that one should feel the apparentanguish of those critics of the Bush ad-ministrations who feel that the UnitedStates has since its inception been a beaconof freedom to the world but has nowrelinquished the moral advantage that itheld for so long. It is a striking featureof American history that the commitmentto a certain conception of freedom hasalways existed alongside the most barba-rous forms of conduct towards other racialand ethnic groups and a visceral contemptfor the rule of law. The liberal commen-tator, Mark Danner, remarks that “by usingtorture, we Americans transform ourselvesinto the very caricature our enemies havesought to make of us”.5 But does one haveto hint at America’s descent into lawless-ness when it is, to much of the world thathas borne the brunt of its military mightand its terrifying arsenal of weapons,lawless? Is lawlessness so foreign anexperience to a country that treated withutter disdain the judgment of the WorldCourt by which the US was ordered to payNicaragua $2 billion in damages for il-legally mining its harbours and actingwith malicious intent to destroy Nicara-gua and its economy?

In Gonzales’s ascent to the pinnacle ofthe justice system one can witness thenadir to which the US has sunk. One candispute to what extent there is honouramong scoundrels, but the cozy friendshipof Bush and Gonzales is no secret. Oneis tempted to say that every nation de-serves the authoritarian leaders that it gets,but this would do injustice to ordinarypeople whose protections under the lawhave been rapidly diminishing, and parti-cularly those who on account of their race,religion, citizenship, or resident status canpalpably feel their vulnerability. There havebeen many other moments in Americanhistory where crimes have been perpe-trated by the country’s leaders, but whatis distinct about the present generation ofthe Republicans who are at the helm isthe fact that they are utterly shorn of anysense of shame. They act with utter im-punity, unscathed by one expose andinvestigative report following another,confident in their knowledge that, oncethe momentary murmurs and shouts havesubsided, they can proceed with the samereckless disregard of human life and cir-cumvention of justice of which they standcharged. They have taken to new heightsthe twofold tactic of strenuously denyingthe accusations laid at their feet, and then

reaffirming their commitment to humanrights, justice and freedom. They under-stand and exploit with breathless brazenness,the power of iteration in public discourse.

Meanwhile, much will be made of the fact,even by those who experience some uneasi-ness with American foreign policy, theprosecution of the war on terror, the scandalsof Guantanamo and Abu Ghraib, and theenhanced powers assumed by the depart-ment of homeland security and intelligenceagencies, that Gonzales would have beensubject, as they imagine, to ‘grilling’, rig-orous scrutiny, and ‘hostile’ questioning bythe millionaire gentlemen who comprise theUS senate. With Gonzales, as with other‘controversial’ nominees to the cabinet pro-posed by one American president or another,there would even have been talk of filibus-tering, or using obstructionist strategies toprevent a vote on the nomination fromcoming to the floor. “The idea that the otherside of the aisle is even considering filibus-tering this manifestation of the Americandream that’s represented by judge Gonzales”,remarked majority leader Bill Frist ofTennessee, “is simply beyond me”. ButFrist need not have worried, since part ofthe extraordinary success of Americandemocracy resides in the fact that its po-litical rituals preclude any real possibility ofthe emergence of dissent and are designed toreinforce conformity and consensus. Thesingular fact remains that well over 95 percent of all presidential nominees to cabinet-level positions in the course of Americanhistory have been confirmed by the senate,and Gonzales’s confirmation was a fore-gone conclusion. In many other countries,the disclosures that have taken place mightnot have been at all possible. But is it notmore scandalous that, knowing all that theAmerican public does know about Gonzalesand his ilk, that it should make no differ-ence. Torture now joins the never-endinglist of American success stories.

Email: vlal@history.ucla.edu

Notes1 ‘Statement on the Nomination of Alberto

Gonzales to be US Attorney General’, PressRelease by the Office of Judd Gregg (Republican-New Hampshire), February 2, 2005, at: http://gregg.senate.gov/statements/Nomination%20of%20Alberto%20Gonzales.htmOn the fundamentals of American myth-making,such as the representation of America as god’sgift to the world, or the United States as a placethat welcomes indigent and oppressed people asmuch as professionals and immigrants withspecialised skills, there is virtually no disagreementbetween the Republicans and Democrats. Thus onthe occasion of Gonzales’s confirmation hearings,

minority leader Harry Reid (Democrat-Nevada)concurred with the Republicans that Gonzales‘has a story that is an American success story’,while adding that Gonzales could not therebyclaim exoneration for his part in advising thepresident that he was not bound by the GenevaConventions. See http://news.yahoo.com/news?tmpl=story&u=/nm/20050202/ts_nm/congress_gonzales _dc_11

2 As legal counsel to governor Bush in Texas,Gonzales was charged with presenting memosto his boss on capital punishment cases whereBush could exercise the prerogative of issuingreprieves and pardons to condemned prisoners.As governor of Texas for six years, Bush presidedover more executions, 152 to be precise, thanany other governor in modern American history. He never issued so much as a 30-day reprieve,even in cases where there was strong reason todoubt the evidence or the conviction. Thememos authored by Gonzales, which havebecome available under the Public InformationAct, suggest that Gonzales never took his taskseriously and looked upon the entire exerciseas an unfortunate obligation. See Alan Berlow,‘The Texas Clemency Memos’, Atlantic Monthly(July-August 2003), and Sister Helen Prejean,‘Death in Texas’, New York Review of Books(January 14, 2005), pp 4-6.

3 The various documents mentioned in this andthe following paragraph can be accessed throughthe website of Human Rights First: http://www.humanrightsfirst .org/us_law/etn/gonzales/index.asp

4 A complete transcript of the Senate JudiciaryCommittee Confirmation hearings is availableonline at http://www.humanrightsfirst.org/us_law/etn/gonzales/statements/gonz_testimony_010604.htm

5 Mark Danner, ‘We Are All Torturers Now’,New York Times (January 6, 2005), p A27.

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