At Alberto Gonzales’s confirmation hearing Thursday to serve as attorney general, much of the questioning focused on one topic: the now-famous Aug. 1, 2002, Office of Legal Counsel memo with Jay Bybee’s name on it, a 50-page document that provided theoretical legal defenses if U.S. officials were charged with violating laws barring torture.
So pervasive was the Bybee memo at Thursday’s six-and-a-half hour hearing before the Senate Judiciary Committee that at one point in his interrogation of Gonzales, Sen. Edward Kennedy, D-Mass., even called him "Mr. Bybee."
(Bybee is now a federal appeals court judge in Las Vegas.)
Kennedy, Sen. Patrick Leahy of Vermont, and other committee Democrats pressed Gonzales to explain why he had asked Bybee’s office to write the memo, how it was used to justify harsh interrogation techniques, perhaps even torture, and why Gonzales had not rejected it outright when he first read it two years ago.
“For two years, from August 2002 to June 2004, you never repudiated it!” Kennedy angrily told Gonzales.
In light of the Bybee memo, Kennedy said, President Bush’s promises that detainees would be treated humanely were “hollow, vague, allowed for ‘military necessity,’ (and) didn’t even apply to the CIA.”
Kennedy on the attack
Kennedy implied that Gonzales had pressured Bybee and his Justice Department lawyers to come up with a legal rationalization that was to his liking.
“What were you urging them (to write)? What were you urging them?” Kennedy demanded, not waiting for an answer to his question.
Sen. Lindsey Graham, R-S.C. also chided Gonzales, saying the Bybee memo “was entirely wrong,” because it hadn’t taken account of the Uniform Code of Military Justice, which bans abuse of detainees.
“We’ve dramatically undermined the war effort by getting on a slippery slope in terms of playing cheap with the law,” he told Gonzales. If you use or rationalize torture, Graham said, you “become more like your enemy.”
Gonzales repeated at least a dozen times that the Bybee memo had now been rejected and was no longer administration policy.
The day’s lessons:
By the end of the hearing here’s what the audience had learned:
- Will Gonzales be confirmed?
In all likelihood, yes, unless there is a "smoking gun" memo somewhere in Washington that someone is about to spring on the nominee, implicating him directly in torture.
With the exception of a few points where he stopped in his tracks to ponder an answer, Gonzales handled his questioning Thursday smoothly, never straying from the administration’s position that none of the abusive acts of abuse at Abu Ghraib, Guantanamo or Afghanistan had been ordered or condoned by the president or any top officials.
Democrats on the committee emphasized that they would not necessarily vote for Gonzales if Bush nominated him for a Supreme Court vacancy: “This is not a Supreme Court (confirmation) hearing, although some suggest it foreshadows one,” Sen. Joe Biden, D-Del., reminded Gonzales, who later in the hearing told Sen. Charles Schumer. D-N.Y., "I'm not a candidate for the Supreme Court."
The reality is that presidents almost always get the Cabinet picks they want.
The two times in the past 50 years that the Senate has voted down a nominee to a Cabinet position is when the president was a Republican and the Democrats controlled the Senate.
- Would Jay Bybee win Senate confirmation as an appeals court judge if the vote were held today?
In all likelihood, no.
On March 13, 2003, more than a year before his memo was leaked to the press, Bybee won confirmation to a seat on the Ninth Circuit Court of Appeals.
Judiciary Committee Democrats feel burned by what they now view as the Bybee fiasco.
An official who wrote a memo that would later be disowned by the administration was given a plum: lifetime tenure on the federal bench.
While Democrats could in theory demand that Bybee be subpoenaed to testify about his memo, Republicans on the committee would vote down that subpoena request.
The thought of impeaching Bybee has even crossed the minds of some Democrats, but that seems far-fetched.
What makes all this more galling for committee Democrats is that Gonzales was one of those in charge of screening judicial nominees and so is responsible for Bybee’s now being on the federal bench.
- Does the 1949 Geneva Convention on treatment of prisoners of war apply to al-Qaida suspects?
Not in Gonzales’s view. He gave a vigorous argument for why extending Geneva Convention privileges to unconventional warriors such as al-Qaida would undermine the Geneva Convention and take away the incentives for U.S. enemies to fight by traditional rules, in uniforms, carrying weapons openly and obeying a chain of command.
By implication, he underscored the truth that if al-Qaida warriors did become a conventional army following the traditional rules of warfare, they would of course lose on the battlefield when faced with U.S. troops.
- Because the Geneva Convention did not apply to al-Qaida detainees, did that pave the way for torture and mistreatment of those detainees or of prisoners held in Iraq?
According to Gonzales, no. He reminded the committee that the Geneva Convention does apply to Iraqi prisoners — although not to Iranians and other nationalities captured in Iraq.
But it was on this point that committee Democrats expressed the most skepticism. In their view, not extending Geneva protections undermined the traditional rules barring torture and abuse.
- Who is more powerful, Sen. Ken Salazar, D-Colo., who was sworn in Tuesday — or Kennedy, a senator who took office Nov. 7, 1962?
In a Senate of 100 equals, for this one day at least, Salazar, the freshman Democrat from Colorado, may have carried more political weight than Kennedy, the liberal lion with legendary past.
Kennedy spent all day pressing Gonzales on the torture question and berating him for the Bybee memo. It was a skillful and familiar Kennedy performance, with his voice often rising in an indignant crescendo.
But Salazar’s decision to appear at the witness table with Gonzales and to give him warm support helped Republicans make the case for Gonzales’s confirmation. (Some Democrats on Capitol Hill were unpleasantly surprised when they learned that Salazar would appear on Gonzales's behalf.)
Salazar burnished the story of Gonzales’s immigrant family and his struggle to succeed. "He and I come from similar backgrounds," Salazar said.
“Judge Gonzales is better qualified than many recent attorneys general,” Salazar told the committee, making one wonder if he was disparaging John Ashcroft, Janet Reno or Ed Meese — or all of the above?
Salazar said Gonzales had “reached out to me” to support his nomination and had had several discussions with him over the past several weeks, agreeing, if confirmed, to travel to Colorado to meet with local officials on homeland security measures and agreeing to consult with Salazar on changes to the USA Patriot Act.
The decision to woo Salazar was a shrewd one by the White House. With Salazar’s gracious testimony, Gonzales moved a good step closer to confirmation.