In stinging testimony before the Senate Judiciary Committee last Thursday, Yale Law School Dean Harold Hongju Koh questioned Attorney General-nominee Alberto Gonzales’s judgment as White House counsel in connection to the Abu Ghraib prison abuse scandal.
Though Koh did not advise the committee whether or not to confirm Bush’s appointment of Gonzales as the nation’s top law enforcement officer, he criticized the Bush Administration and, in particular, an August 2002 memorandum drafted by an attorney in Gonzales’s office that supports broad executive powers to declare war and authorize torture without congressional or judicial approval.
“Taken together, Mr. Gonzales’ legal positions have sent a confusing message to the world about our nation’s commitment to human rights and the rule of law,” said Koh, an international law expert and former assistant secretary of state for democracy, human rights and labor, according to his prepared testimony. “They have fostered a sense that we apply double standards and tolerate a gap between our rhetoric and our practice.”
In his defense, Gonzales said the responsibility of setting and implementing interrogation policy lies with various government department agencies.
“It is not my job to decide which type of methods of obtaining information from terrorists would be most effective,” Gonzales said in his testimony, according to an official transcript. “I never influenced or pressured the [Department of Justice] to bless any of these techniques. I viewed it as their responsibility to make the decision as to whether or not a procedure or method of questioning of these terrorists that an agency wanted would, in fact, be lawful.”
But Koh said the authority granted by the 2002 memo ignores both constitutional law and legal precedent.
“No constitutional authority licenses the president to authorize the torture and cruel treatment of prisoners, even when he acts as commander-in-chief,” said Koh, who dealt with human rights during the Clinton administration and worked in the Office of Legal Counsel during the Reagan administration. “Most fundamentally, the attorney general must assure that no one is above the law — even the president of the United States — and that no person is outside the law, whether that person is deemed an ‘enemy combatant,’ or held outside the United States or on Guantanamo.”
Koh’s testimony last week is only one example of Yale’s influence in Washington, Yale Diplomat-in-Residence Charles Hill said.
“Someone from the State Department may call me up and say, ‘What do you think of this or that?'” Hill, a former top-ranked State Department official, said. “I know a well-known Yale professor who’s been invited to the White House this week. There’s a lot that goes on at a variety of levels and formats.”
Gaddis Smith, Yale historian and history professor emeritus, said faculty members have often testified before Congress, including former Law School Dean Eugene Rostow, who later served in the State Department and as the director of arms control in the Reagan administration. But, unlike Koh, Rostow did not believe the United States should adhere to restrictions on military conduct abroad, Smith said.
“In his early domestic politics he was quite a liberal, but in foreign policy he was quite a hard-line ‘Cold Warrior,'” Smith said. “So he didn’t say, ‘Oh, we can’t do this or that, because it’ll hurt our values.’ Eugene Rostow was, in effect, a sort of antecedent or grandfather of the neoconservatives in the George W. Bush administration.”
But Smith said while congressional testimony is not unheard of among Yale professors, he could not think of another time when a Yale professor testified regarding a cabinet nomination. Smith said Koh’s expertise in international law and human rights made his testimony relevant.
“There is no one in the country, in my opinion, who is better qualified to comment on the use of torture as part of American foreign policy,” Smith said. “How does it stand up to the Constitution, or our treaty obligations, or human rights?”
Despite Koh’s testimony, Gonzales is expected to win confirmation by the Republican-dominated Senate. Smith said he thinks each committee member had already made his or her decision prior to the hearings.
Still, Koh said he thinks his time was well spent.
“I received many thanks from senators on both sides of the aisle and their staffs for testifying, and I have received many kind e-mails and messages from friends and strangers about my testimony — [as well as] some very vicious ones,” Koh said. “In deciding to give the testimony, I was guided, as I have long been, by something an old professor of mine, Abram Chayes of Harvard Law School, once said: — ‘I have always thought that there is nothing wrong with holding the United States to its own best standards and best principles.'”