[News] Torture's Path

[News at freedomarchives.org]

Torture's Path
The paper trail is long, and it isn't pretty. But it's sure to produce some 
tough Senate questions for Alberto Gonzales
By Michael Isikoff, Daniel Klaidman and Michael Hirsh
Newsweek

Dec. 27 / Jan. 3 issue - The CIA had a question for the top lawyers in the 
Bush administration: how far could the agency go in interrogating terror 
suspects­in particular, Abu Zubaydah, the close-mouthed Qaeda lieutenant 
who was resisting standard methods? So in July of 2002 the president's 
chief counsel, Alberto Gonzales, convened his colleagues in his cozy, 
wood-paneled White House office. One by one, the lawyers went over five or 
six pressure techniques proposed by the CIA. One such technique, a 
participant recalls, was "waterboarding" (making a suspect think he might 
drown). Another, mock burial, was nixed as too harsh. A third, the 
open-handed slapping of suspects, drew much discussion. The idea was "just 
to shock someone with the physical impact," one lawyer explained, with 
"little chance of bone damage or tissue damage." Gonzales and the lawyers 
also discussed in great detail how to legally justify such methods.

Among those at that first White House meeting was Justice Department lawyer 
John Yoo, who sat on a couch along the wall. And partly out of the 
discussions in Gonzales's office came the most notorious legal document to 
emerge from last spring's Abu Ghraib interrogation scandal. This was an 
Aug. 1, 2002, memo­drafted by Yoo, signed by Assistant Attorney General Jay 
Bybee and addressed to Gonzales­which provoked outrage among human-rights 
advocates by narrowly defining torture. The memo concluded, among other 
things, that only severe pain or permanent damage that was "specifically 
intended" constituted torture. Mere "cruel, inhuman or degrading" treatment 
did not qualify.

At the White House meeting, Gonzales was concerned about observing the law, 
the participant recalls. "We didn't want to go over the line," he says. But 
Gonzales's worry was: "Are we forward-leaning enough on this?" "That's a 
phrase I heard Gonzales use many times," recalls this lawyer. "Lean 
forward" had become a catchphrase for the administration's offensive 
approach to the war on terror. "And the second part of that statement was 
always, 'Prevent an attack, save lives.' If Gonzales had any role in this, 
it was to be the fair arbiter of 'Are we doing enough?'"

Such aggressiveness after 9/11 was typical for Alberto Gonzales, the 
soft-spoken Harvard Law graduate who has been George W. Bush's lawyer since 
the latter's days in the Texas governor's mansion. Gonzales's legal and 
ethical advice will be the focus of confirmation hearings next month on his 
nomination as Bush's second-term attorney general. In the first months 
after 9/11, Gonzales helped to craft some of the most momentous and 
controversial decisions of Bush's presidency. Among them: to create 
military commissions for the trials of terrorists, to designate U.S. 
citizens as "enemy combatants" and to disregard the Geneva Conventions in 
the treatment of prisoners at Guantanamo Bay. But until now he has steered 
clear of the spotlight. "He's kind of an enigma," says one lawyer who 
worked with him. "His defining characteristic is loyalty to the president."

Yet memos reviewed by NEWSWEEK and interviews with key principals show that 
Gonzales's advice to the president reflected the bold views laid out in the 
Aug. 1 memo and other documents. Sources close to the Senate Judiciary 
Committee say a chief focus of the hearings will be Gonzales's role in the 
so-called "torture memo," as well as his legal judgment in urging Bush to 
sidestep the Geneva Conventions. In a Jan. 25, 2002, memo to Bush, Gonzales 
said the new war on terror "renders obsolete Geneva's strict limitations on 
questioning of enemy prisoners." Some State Department lawyers charge that 
Gonzales misrepresented so many legal considerations and facts (including 
hard conclusions by State's Southeast Asia bureau about the nature of the 
Taliban) that one lawyer considers the memo to be "an ethical breach." In 
response, a senior White House official says Gonzales's memo was only a 
"draft" and just one part of an extensive decision-making process in which 
all views were aired.

By several accounts, Gonzales and his team were constantly looking to push 
legal limits, to widen and maximize Bush's powers. Just two weeks after 
September 11, an earlier secret memo drafted by Yoo had landed on 
Gonzales's desk, arguing there were effectively "no limits" on Bush's 
powers to respond to the attacks. Startlingly, the memo said the president 
could deploy military force "pre-emptively" against terror groups or entire 
countries that harbored them, "whether or not they can be linked to the 
specific terror incidents of Sept. 11." The president's decisions "are for 
him alone and are unreviewable," the memo said. Never before disclosed, the 
Sept. 25, 2001, memo was quietly posted on an obscure government Web site 
late last week. The 15-page memo is the earliest known statement of Bush's 
doctrine of pre-emptive war.

Last June, Gonzales indicated he no longer held some of the extreme views 
of the president's "unlimited" powers first laid out in this memo. Amid the 
furor over the Abu Ghraib Prison photos that depicted Iraqis being abused 
and humiliated by U.S. soldiers, Gonzales insisted to reporters that the 
"torture" memo of Aug. 1 and other documents then making headlines were 
little more than "irrelevant" legal theorizing. It is not surprising why 
Gonzales was distancing himself: the Justice Department's Office of 
Professional Responsibility recently launched an investigation into the 
origins of the Aug. 1 memo. The probe will look into whether the lawyers 
were irresponsible in pushing beyond the normal boundaries of advocacy. In 
a tense meeting last June, Jack Goldsmith, then head of the Justice 
Department's Office of Legal Counsel, told Gonzales he was withdrawing the 
Aug. 1 memo. Goldsmith then resigned­at least partly due to his discomfort 
about the memo. It was only then that Gonzales decided to distance himself 
from it. (Goldsmith declined to comment.)

But there is no evidence that Gonzales ever rejected such reasoning before 
the Abu Ghraib scandal came to light. On the contrary, sources say, he and 
his staff relied heavily on John Yoo and his legal theories. Most observers 
still expect Gonzales to be confirmed by the GOP-majority Senate. Yet it's 
clear he'll face some tough questioning first.
© 2004 Newsweek, Inc.

URL: 
<http://www.msnbc.msn.com/id/6733213/site/newsweek/>http://www.msnbc.msn.com/id/6733213/site/newsweek/


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