White House Counsel Alberto Gonzales is an amiable man with an inspiring personal story. One of eight children of uneducated Mexican-American immigrants, he grew up in a Texas house with no hot water or telephone. He would be the first Hispanic attorney general. He has the complete trust of the president, whom he has loyally served for four years in Washington, and in Texas before that. He is far less divisive and confrontational than the departing John Ashcroft.
The problem with Gonzales is that he has been deeply involved in developing some of the most sweeping claims of near-dictatorial presidential power in our nation's history. These claims put President Bush literally above the law, allowing him to imprison and even (at least in theory) torture anyone in the world, at any time, for any reason that Bush associates with national security. Specifically:
* Gonzales played a central role in developing Bush's claim of unlimited power to seize suspected "enemy combatants"—including American citizens—from the streets or homes of America or any other nation, for indefinite, incommunicado detention and interrogation, without meaningful judicial review or access to lawyers.
* He presided over the preparation of the poorly drafted November 2001 Bush order establishing "military commissions" to try suspected foreign terrorists for war crimes.
* He signed the January 25, 2002, memo to the president arguing that the 1949 Geneva Conventions offer no protection to any prisoners seized in Afghanistan; the memo dismissed some of the Geneva provisions as "quaint." This memo signaled Bush's break—over vigorous objections from Secretary of State Colin Powell—with the generous interpretation of the Geneva Conventions used under every president from Harry Truman through Bill Clinton. It also led to Bush's refusal to provide the individual hearings required, both by Geneva and by Army regulations, for the hundreds of alleged "unlawful combatants" at his Guantanamo Bay prison camp.
* He was the addressee of, and apparently had a role in vetting, the August 1, 2002, Justice Department memo asserting that the commander-in-chief has virtually unlimited power to authorize indiscriminate use of torture in wartime interrogations—tearing off fingernails, branding prisoners' genitals with red-hot pokers, you name it.
Here is how these profoundly unwise claims have worked out:
* The no-due-process "enemy combatant" policy brought Bush an 8-1 rebuff from the Supreme Court on June 28, in Hamdi v. Rumsfeld. The majority asserted that "a state of war is not a blank check for the president." Antonin Scalia, the justice whom Bush has said he most admires, stressed in a concurrence that "the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive."
* The "military commissions" have been a fiasco in practice (as detailed in my September 11, 2004, column) and were held to be unlawful in important respects on November 8 by Judge James Robertson of the U.S. District Court for the District of Columbia. (The administration plans to appeal.)
* Bush's spurning of the Geneva Conventions and refusal to provide hearings for Guantanamo detainees probably explain his 6-3 defeat in another June 28 Supreme Court decision, Rasul v. Bush, which rejected Bush's claim of power to detain non-Americans at Guantanamo without answering to any court. And Judge Robertson wrote that the administration "has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad."
* The Justice Department torture memo, together with a similar Pentagon memo in March 2003 and the Abu Ghraib photos, have brought the United States worldwide opprobrium for authorizing torture as official policy (which Bush did not do) while making the CIA and the military newly wary of using even mild, legally defensible forms of coercion to extract information from captured terrorists.
If Senate Democrats (and Republicans) are not too cowed by Bush's election victories to do their jobs, the confirmation proceeding for Gonzales will drag us more deeply than ever through the torture memos, Abu Ghraib, the evidence of torture and killing of prisoners by U.S. forces in Afghanistan, and all that. Will that be good for Gonzales? For Bush? For the country?
At the very least, Democrats should demand a full accounting of Gonzales's role in the development of these torture memos. And when Bush claims confidentiality, the answer should be: If you must cloak in secrecy your counsel's role in shaping your own grandiose claims of power, then don't ask us to confirm him.
Here is a far-from-complete history of the torture memos, as reconstructed from anonymous sources and news reports:
The CIA began using various forms of duress to extract information from captured Qaeda leaders overseas in late 2001 and early 2002. But agency officials were concerned that they might be prosecuted by some future administration or independent counsel, and that the CIA itself might be attacked for abusing its powers, as it was during the 1970s. So CIA Director George Tenet requested a legal memo assuring interrogators and their superiors sweeping presidential protection from any future prosecution under an anti-torture law that Congress had adopted in 1994 to comply with the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
The task was assigned to the Justice Department's Office of Legal Counsel. The Bush-appointed head of OLC, Jay Bybee, now a federal judge, and some other Justice Department and White House lawyers were reluctant to make such a bold and unprecedented claim of presidential power. But under apparent pressure from their superiors, Bybee and his staff produced the August 1, 2002, memo, addressed to Gonzales. Earlier drafts had been carefully vetted by the offices of Gonzales, Ashcroft, and David Addington, Vice President Cheney's counsel.
I have been unable to determine how deeply Gonzales was involved in the details. The Senate should demand to know.
Aside from the OLC memo's indefensible claims of presidential power to order torture, it also claims that rough treatment of prisoners does not even fit the definition of torture unless "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
There is no evidence that the administration ever approved "torture," as thus defined, as a matter of policy. It did approve a number of highly coercive, still-classified interrogation methods, such as feigning suffocation and subjecting prisoners to sleep deprivation and "stress positions," which apparently helped extract valuable information from Qaeda leaders. And in 2003, the Pentagon adopted the Justice Department's analysis—initially devised for CIA interrogations of a few high-level terrorists—to justify coercive interrogations of prisoners at Guantanamo and, later, in Iraq. This came despite strong objections from top military lawyers, based on their long-standing view that rough interrogation methods are ineffective, arguably illegal, and likely to become indiscriminate and excessive.
How much all of this had to do with bringing about the now-documented torture, abuses, and killings of prisoners in Iraq and Afghanistan is in dispute. What's clear is that the leaked torture memos, as well as the Abu Ghraib photos, disgraced our nation—so much so that Gonzales and other White House officials, at a June 22 news conference, sought to blame the OLC lawyers for what Gonzales called their memo's "overbroad" and "unnecessary" passages. The Senate should now explore whether (as has been suggested to me) the OLC lawyers had only been following orders from the same White House officials who later ran for cover.
This is not to deny the difficulty of the issues presented to Gonzales and his colleagues by the unprecedented magnitude of the terrorist threat. Nor is it to deny the need for judicious use of preventive detention and coercive interrogation techniques (short of torture) to prevent mass murders. But the torture memos are emblematic of a Bush White House that has consistently failed to strike a wise balance between the demands of security and of liberty.
Gonzales's role in all of this appears to be to tell Bush what Bush wants to hear. With the dubious benefit of such advice, Bush has not only shown little appreciation for civil liberties but also provoked a judicial and international backlash that has hurt the war on terrorism. Gonzales does have many fine qualities. But is this the attorney general we need?