Liberty Beat
Condi Rice: Misrule of Law

The new secretary of state, the president's confidante, plays by his code of justice

	‘Trust us not to torture our prisoners.’ photo: Helene C. Stikkel/U.S. Department of Defense

During the Senate Foreign Relations Committee hearing on the nomination of Condoleezza Rice to succeed Colin Powell as secretary of state, Christopher Dodd, Democrat of Connecticut, asked her about reports of transfers of detainees to countries where they are allegedly tortured to extract information that the CIA and other American interrogators couldn't get out of them.

The new secretary of state (she was confirmed by the committee with only two dissenting votes, and the Senate has agreed) said that the United States is not permitted to transfer its prisoners if "we think that they're going to be tortured. And, in fact, we make efforts to ascertain that this will not happen and you can be certain that we will continue to do so."

Chris Dodd—who has failed to get an amendment passed mandating the administration to keep a record of detainees outsourced to countries with a record of torturing their own citizens—did not appear to be reassured by Rice's answer. He had also asked her, at the hearings, whether she considers such CIA interrogation techniques as water-boarding (making a prisoner feel he is about to be drowned) "to be torture or not."

Rice assured him briskly that "anything that is done is done within the limits of the law." As for what techniques are within the American rule of law, she said: "Senator, the determination of whether interrogation techniques are consistent with our international obligations and American law are made by the Justice Department. I don't want to comment on any specific interrogation techniques."

Therefore, the new secretary of state will defer to, of all people, Attorney General Alberto Gonzales—the orchestrator of the administration's torture memos—to make sure that American prisoners are not subject to some of the following techniques that have been reported by troubled FBI agents in Guantánamo, along with concerned counter-intelligence officers: attaching electrodes to private parts; chaining hands and feet in a fetal position for long periods of time without food and water; inserting lighted cigarettes into ears; and prolonged, severe beatings, among other persuasions.

Whether Rice defines these as torture or not, they have been used on prisoners under direct American custody. Moreover, no one knows what fiercely insistent techniques are perpetrated in the CIA's own secret interrogation centers in Afghanistan, Iraq, and ships at sea.

On January 19, the day that Dr. Rice told Christopher Dodd he has no need to fret about whether detainees are being treated with due regard for the standards of this constitutional democracy, Eric Lichtblau reported in The New York Times on some of the more than 200 pages of Alberto Gonzales's written answers to questions by members of the Senate Judiciary Committee. (They had not been satisfied with his less than artful evasions of their queries at his confirmation hearing.)

I am now in possession of all of those written answers. But of particular immediate interest in view of Condoleezza Rice's and George W. Bush's assurances that we treat all prisoners humanely even if they are just suspects—and presumed guilty unless they can somehow prove themselves innocent—there is this lead paragraph of Lichtblau's report on Gonzales's answers:

"Officers of the Central Intelligence Agency and other nonmilitary personnel fall outside the bounds of a 2002 directive issued by President Bush that pledged the humane treatment of prisoners in American custody, Alberto R. Gonzales . . . said." (Emphasis added.)

It was Gonzales, as White House counsel, who was involved in a March 13, 2002, memorandum, "The President's Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations." (They were not transferred just to give them a change of scenery.) This torturing of the American rule of law gave the Bush administration's imprimatur to what the CIA calls "extraordinary renditions" to Egypt, Jordan, Saudi Arabia, Pakistan, and other countries that specialize in accumulating confessions by any means necessary.

Martin Lederman, a former Justice Department lawyer—and an expert on the Bush administration's legal policies in dealing with prisoners—is paraphrased by the Times' Lichtblau as noting that Gonzales's written answers "made it clear that the White House had carved an exemption for the CIA in how it goes about interrogating terror suspects, allowing the agency to engage in conduct outside the United States that would be unconstitutionally abusive within its borders. Although the CIA has been largely bound by Congressional bans on torture, Mr. Lederman said that [Gonzales's answer] was far more permissive [for the CIA]." (Emphasis added.)

Or, as Alberto Gonzales chillingly put it elsewhere in his answer to skeptical Judiciary Committee senators, as reported in the Lichtblau story: "A separate Congressional ban on cruel, unusual, and inhumane treatment had 'a limited reach' and did not apply in all cases to 'aliens overseas.' "

But Rice tells you not to worry. Trust the Justice Department and the president, who has often pledged that this country will never, ever permit torture.

Under this new attorney general, this new secretary of state—and the president, enjoying spending the capital, as he puts it, of his re-election—the twists and turns of the American rule of law will accelerate during the next four years while the administration preaches our need to spread democracy throughout the world. There was a moment, during Senate action last year on the intelligence reform bill, when that body voted 96 to two for an amendment introduced by senators Joseph Lieberman and John McCain prohibiting extreme interrogation measures and requiring the CIA and the Pentagon to report to Congress what methods they were using.

But, as The New York Times reported on January 13, "in intense, closed-door negotiations . . . four senior members from the House and Senate deleted the restrictions from the final bill after the White House expressed opposition."

Condoleezza Rice had strongly opposed those restrictions on torture because they gave "legal protection to foreign prisoners to which they are not now entitled under applicable law and policy" by the Bush administration.

At her confirmation hearing, Senator Christopher Dodd told Dr. Rice: "I'd like you to spend about 15 minutes with John McCain"—who was tortured for years by the North Vietnamese.

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