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</font><font face="Georgia" size=5 color="#CC0000">Torture's Path<br>
</font><font face="tahoma" size=2><b>The paper trail is long, and it
isn't pretty. But it's sure to produce some tough Senate questions for
Alberto Gonzales<br>
</font><font face="Verdana" size=1>By Michael Isikoff, Daniel Klaidman
and Michael Hirsh<br>
</b>Newsweek<br><br>
</font><font face="Verdana" size=2>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.<br><br>
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.<br><br>
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?'"<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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.)<br><br>
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.<br>
<i>© 2004 Newsweek, Inc.<br><br>
</i>URL:
<a href="http://www.msnbc.msn.com/id/6733213/site/newsweek/">http://www.msnbc.msn.com/id/6733213/site/newsweek/<br><br>
</a></font><x-sigsep><p></x-sigsep>
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