A lawyerly defense for outsourcing torture

by Tim Grieve
Salon.com

When George W. Bush nominated Alberto Gonzales to serve as attorney general, critics in both law and politics worried that Gonzales would apply his legal skills not to the enforcement of the law but to the subversion of it. It’s what lawyers do sometimes on behalf of private clients. You develop an interpretation of the law that makes the illegal legal; through legal canons, through twists of language and precedent, through word games that defy everyday logic, you come up with a legal theory that provides a client cover for nefarious behavior or a defense when he finally gets caught.

As Joshua Dratel wrote in his introduction to “The Torture Papers,” that’s exactly what government lawyers did along the road to Abu Ghraib. The Bush administration’s legal memoranda on torture “reflect what might be termed the ‘corporatization’ of government lawyering,” Dratel wrote, a system in which administration officials enlisted “the aid of intelligent and well-credentialed lawyers who, for whatever reason — the attractions of power, careerism, ideology, or just plan bad judgment — all too willingly failed to act as a constitutional or moral compass that could brake their client’s descent into unconscionable behavior constituting torture by any definition, legal or colloquial.” In crafting brilliant justifications for whatever their clients wanted do, Dratel wrote, the lawyers turned themselves into “gold plated” rubber stamps.

As attorney general, Gonzales promised that things would be different. “As counselor to the president, my primary focus is on providing counsel to the White House and to the White House staff and the president,” Gonzales told senators at his confirmation hearing in January. “I do have a client who has an agenda, and part of my role as counselor is to provide advice so that the president can achieve that agenda lawfully. It?s a much different situation as attorney general, and I know that. My first allegiance is going to be to the Constitution and the laws of the United States.”

But in his latest pronouncements on the use of torture, there’s little proof that Gonzales has changed — and strong evidence to suggest that he’s still serving as a legal advocate for his former clients. Speaking to reporters at the Justice Department Monday, Gonzales defended the administration’s use of “extraordinary rendition,” the practice of sending detainees to foreign countries where they may fear — and then face — even harsher interrogation tactics than the United States might use.

The U.N. Convention Against Torture prohibits a signatory country — and the U.S. is one — from sending a detainee to another country for interrogation “where there are substantial grounds for believing? that the detainee would be “in danger” of being tortured there. Words like “substantial grounds for believing” provide acres of wiggle room for a clever lawyer. And despite his job change, Gonzales is still wiggling.

Back in January, in a written response to questions from senators during his confirmation process, Gonzales said the administration reads the U.N. Convention’s prohibition broadly. “It is my understanding,” he wrote, “that the United States does not render individuals to countries where we believe it is more likely than not they will be tortured.”

That’s what Gonzales said then, but it’s not what he’s saying now. Asked again Monday about rendition, Gonzales said that the United States won’t send detainees to “to countries where we believe or we know that they’re going to be tortured.” The Washington Post says that’s a “slight modification” of Gonzales’ earlier statements, but it’s much more serious than that. In the law, “more likely than not means” pretty much what it says — if the administration thinks there’s more than a 50-50 chance that a detainee will be tortured in a foreign country, it won’t send him there. And when the risk you’re weighing is the potential torture of a human being, you’d like to think that a tie goes to the runner: If it’s a close call, you don’t send the detainee.

Gonzales’ new standard is very different. When can the U.S. government really “believe” or “know” that a detainee is going to be tortured? If the country you’re considering has tortured other prisoners in the past, do you really “know” that it will torture the detainee that you’re thinking of sending now? As a former Justice Department lawyer recently told The New Yorker, “The Convention only applies when you know a suspect is more likely than not to be tortured, but what if you kind of know? That?s not enough. So there are ways to get around it.”

Of course, Gonzales’ new standard writes the “more likely than not” part right out of the equation. Under the Gonzales test, it’s not enough for the government to “know” that it’s “more likely than not” that the detainee will be “in danger” of being tortured; the government must “know” or “believe” that the detainee is “going to be” tortured. Note, too, that the Gonzales test removes the objective element that the U.N. Convention includes: The convention’s prohibition doesn’t turn on what the country that sends the detainee chooses to “know” or “believe” — it turns on whether there is “substantial reason” for such a belief.

Lawyers don’t like objective standards, at least not lawyers who have to defend clients who have pushed the limits of the law. It’s easy for a judge or a jury to decide whether there were “substantial grounds” for a belief; it’s much harder for a prosecutor to prove that a person actually had that belief. That’s the grey area where operators operate, and Alberto Gonzales — first as White House counsel, now as Attorney General — is a lawyer working hard to keep it wide open.