Lawrence Jackson  /  AP file
Senate Judiciary Committee members will question White House Counsel Alberto Gonzales on Thursday.
By Tom Curry National affairs writer
updated 1/6/2005 9:48:50 AM ET 2005-01-06T14:48:50

The Senate Judiciary Committee’s confirmation hearing Thursday morning for White House counsel Alberto Gonzales will be an inquest of sorts, as well as a public relations trial for the man President Bush has chosen to be the next attorney general of the United States.

On trial will be not only Gonzales, but the Bush administration’s interrogation of al-Qaida and Taliban prisoners in Iraq, at the Guantanamo Navy base in Cuba and perhaps elsewhere.

Gonzales’ adversaries, including the New York Times editorial page, Human Rights First, (formerly the Lawyers Committee for Human Rights) and some retired military officers such as Marine Gen. Joseph Hoar, contend that he wrote one memo and approved another, written by former Justice Department official Jay Bybee, which either authorized or at least set the stage for torture of al-Qaida and Taliban detainees.

“Legal opinions emanating from Mr. Gonzales … led ultimately to a multitude of violations of law that have brought disgrace on this country,” charged Elisa Massimino, Washington director of Human Rights First.

Another Gonzales foe, retired Gen. John Cullen of the Army Judge Advocate General’s Corps, accused him of deliberately avoiding seeking counsel from military judges “because he knew they would never sanction a departure from the requirements of the Geneva Convention, nor would they sanction torture.”

Missing man at hearing
Although Gonzales will be the target in Thursday’s hearing, the man directly implicated in what is now called “the torture memo” is Bybee, now a federal appeals judge sitting 2,400 miles away from Capitol Hill in Las Vegas.

Principally at issue Thursday are two different memos, although the distinction between them has been and will likely continue to be smudged in the public debate.

The first memo, just a bit more than three pages long, has Gonzales’ name on it, although the Washington Post reported Wednesday that it was drafted by Vice President Cheney’s legal counsel David Addington. It was submitted to Bush on Jan. 25, 2002.

The second memo — 50 pages long — was written by Bybee and submitted to Gonzales on Aug. 1, 2002.

The Gonzales memo reaffirms his opinion that the 1949 Geneva Convention on the treatment of prisoners of war applies neither to al-Qaida members nor to Taliban detainees.

The war against al-Qaida, Gonzales argued, “is not the traditional clash between nations adhering to the laws of war that formed the backdrop for” the Geneva Convention of 1949.

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Al-Qaida and Taliban detainees were not the traditional soldiers such as the United States faced in World War I, World War II and the Korean War.

“In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments,” Gonzales wrote.

Fear of prosecution
Gonzales warned that “prosecutors and independent counsels … may in the future decide to pursue unwarranted charges” against U.S. officials and soldiers based on a 1996 statute, the War Crimes Act, which prohibits the commission of a war crime, defined as any grave breach of the Geneva Convention.

To avoid what he called “misconstruction or misapplication” of the 1996 law, Gonzales recommended that Bush deem the Geneva Convention inapplicable to al-Qaida and Taliban detainees.

In his memo, Gonzales did not address the topic of torture. He did say that in its treatment of al-Qaida and Taliban members, the United States “will continue to be constrained by its commitment to treat the detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with” the 1949 Geneva Convention.

Questions Gonzales is likely to be asked at Thursday’s hearing: How did his conception of “military necessity” square with humane treatment? Was “military necessity” meant to be understood as a euphemistic cover for mistreatment of detainees?

The Bybee memo, which the Bush administration disavowed last week, said that a U.S. official or soldier accused of violating the torture statute in interrogating a suspect could invoke national defense to avoid prosecution if, for example, “an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens.”

There may be cases, Bybee wrote, where “an attack appears increasingly likely, but our intelligence services and armed forces cannot prevent it without the information from the interrogation of a specific individual.”

Vote on Bybee
On March 13, 2003, more than a year before his memo was leaked to the press, Bybee won Senate confirmation to a lifetime appointment on the Ninth Circuit Court of Appeals.

Bybee won support from now-Senate Democratic Leader Harry Reid of Nevada and even from ranking Judiciary Committee Democrat Sen. Patrick Leahy of Vermont, who’d been frustrated by Bybee’s refusal during his confirmation hearing to explain what advice he’d given, as head of the Justice Department’s Office of Legal Counsel, regarding treatment of al-Qaida suspects.

While there are questions Senate Democrats would like to pose to Bybee, it is unclear whether the committee has any method of requiring him to explain his memo, even though it is pertinent to the question of whether Gonzales ought to be confirmed.

Asked Tuesday to preview the Gonzales hearing, Judiciary Committee member Sen. Russ Feingold, D-Wis., told MSNBC.com, “I have a lot of questions I’m ready to ask about everything from his role in the death penalty cases in Texas to his role in the torture policy.” Asked whether there was any action the Senate could take to get answers from Bybee about his memo or hold him to account for it, Feingold replied, “I’m not ready to comment on that.”

A primary focus of Thursday’s questioning of Gonzales will be why he asked Bybee to write the Aug. 1, 2002, memo and whether it was designed to justify techniques the CIA or other military interrogators were using to pry information out of al-Qaida suspects.

As for the memo that Gonzales himself wrote, a Democratic Senate Judiciary Committee staff member told MSNBC.com Wednesday that U.S. soldiers had tried to justify their treatment of al-Qaida and other prisoners by saying that if the president had ruled that the Geneva Convention did apply to them, they would have treated the prisoners better.

One of Gonzales’ defenders, former Reagan administration Justice Department official Douglas Kmiec, rejected this argument Wednesday in an opinion piece in the Wall Street Journal.

“Some service personnel have sought to justify shameful treatment of detainees by claiming that previous legal advice somehow invited or sanctioned their misbehavior,” Kmiec said. Gonzales did not sanction or invite prisoner abuse, Kmiec said.

Praise for Gonzales
While acknowledging that the Bybee memo “was surprisingly expansive in scope,” Kmiec said Gonzales “deserves substantial credit for returning the whole torture memo matter to the Department of Justice for rethinking. It is the hallmark of a wise counselor who has the courage — even in the face of national embarrassment — to see error, and to correct it.”

The Senate Democratic staff member said that while Gonzales argued in his memo that the 1949 convention’s limits on questioning of detainees was obsolete, in fact the Geneva convention did not place significant limits on questioning of detainees or POWs. The Geneva Convention only places restraints on torture and coercion, the staffer said. 

After the Bybee memo was leaked last June, Gonzales held a White House press conference in which he sought to minimize its importance: "These opinions were circulated among lawyers and some Washington policymakers only. To my knowledge, they never made it to the hands of soldiers in the field, nor to the president."

A question Gonzales will likely get from Democrats: What specifically was there in the Geneva Convention’s ban on torture and coercion that he thought was burdensome or obsolete? Why did he seek to steer clear of Geneva Convention rules if they were consistent with treating the detainees humanely?

While Leahy has urged Gonzales to turn over documents that might shed light on what interrogation techniques the Justice Department was approving, so far the Bush administration has refused to give additional documents to Leahy. If there were a “smoking gun” memo in which Gonzales justified torture, it is not yet in the hands of his interrogators.

In 2001, when the Senate was weighing the nomination of Bush’s first attorney general, John Ashcroft, Sen. Edward Kennedy, D-Mass., considered a filibuster, although he later dropped that idea.

What Democrats objected to then was Ashcroft’s conservative ideology; with Gonzales, the Senate Democrats have something far more dramatic and tangible: allegations that his legal advice ultimately led to torture. But so far, Senate Democrats are not threatening filibuster.

In fact, one Democrat, Sen. Ken Salazar of Colorado, will help formally introduce Gonzales to the committee, a ritual that does not necessarily reveal how Salazar will vote on the nomination, but indicates that Gonzales isn’t so politically radioactive that a Democrat won’t stand by his side.

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