Bush rewards torture advocate - to head Justice

[Moses]

Bush picks another loser

November 16, 2004

BY JESSE JACKSON
www.suntimes.com/output/jesse/cst-edt-jesse16.html



Is Abu Ghraib something that this country wants to reward? Is the torture that shamed us across the world and angered the professionals in the Pentagon for putting our own troops at risk now to be embraced and celebrated?


It is hard to imagine anyone less suited to be attorney general after Sept. 11 than John Ashcroft, President Bush's unfortunate choice for his first term. Amazingly, with Ashcroft's resignation, Bush seeks to have him succeeded by White House counsel Alberto Gonzales, the zealous partisan who generated the memos that argued the president had the right to trample the Geneva Convention and authorize the torture of prisoners -- and that led directly to the crimes of Abu Ghraib.

The attorney general is America's lawyer. He or she is supposed to be not a partisan operator but a thoughtful advocate of justice. With the fears generated by Sept. 11 and the terrorist threat, we need an attorney general who can rouse the Justice Department and the FBI to pursue those who would harm us, even while protecting the rights of the innocent. We need someone who understands that you cannot defend America by trampling the Constitution, freedoms and rights that you are tasked to defend. Gonzales has shown that he doesn't understand that loyalty to the law must supercede loyalty to his patron. Even without the Abu Ghraib memos, Gonzales would be a suspect choice.

He is a long time crony of Bush. For years, he was counsel at Vinson and Elkins, the firm that represents Enron and Halliburton, both under active investigation by the Department of Justice. Gonzales got contributions from Enron when he ran for the Texas Supreme Court. As a member of that court, he accepted $3,000 from Halliburton just before the court was to hear an appeal of a case involving Halliburton's liability to an employee. Amazingly, Gonzales did not take himself off the case for his clear conflict of interest.

Worse, as chief legal counsel for then-Gov. Bush in Texas, Gonzales wrote Bush a memo on each death penalty case from which Bush decided whether the defendant should live or die. Atlantic Monthly analyzed the memos and concluded that Gonzales repeatedly failed to give the governor crucial information about the cases -- from ineffective counsel to actual evidence of potential innocence.

As White House counsel, Gonzales produced memos arguing that torture was limited only to extreme violence that led to maiming or "organ failure." He argued that the Geneva Convention, the law of the land that U.S. soldiers invoke to defend themselves when they are captured, was "quaint" and "outdated" in a war on terror.

He argued that, in a time of war, the president was above the law, could invoke his national security prerogatives and that subordinates torturing prisoners under the president's authority had a legal defense of necessity. America was shamed when the sordid extremes of Abu Ghraib and Guantanamo came to light. The administration blamed it all on a few "bad apples," and pushed to prosecute a handful of low-level soldiers.

Will the torture champion win approval in the Senate? Many Democrats are said to be cowed by the president's victory. Moderate Republicans who know better -- like John McCain or Chuck Hegel -- tend to line up and salute the White House when push comes to shove. And, of course, Hispanic groups want to applaud the nomination of a Latino to be attorney general. They face the same kind of choice that African-Americans faced when George Bush I named Clarence Thomas to the Supreme Court.

In the Thomas nomination, I argued hard that we'd come too far to support a nominee solely on the basis of race, gender or religion. The obvious pride involved in the nomination was far outweighed by the threat posed by a jurist who wants to roll back civil rights, women's right to choose or, in this case, the basic rule of law.

Is the president above the law? Is Abu Ghraib representative of American justice? Our Constitution of checks and balances is mocked by a presidential claim of a royal prerogative to do as he pleases in the name of national security. By nominating the champion of Abu Ghraib as his attorney general, Bush disgraces far more than himself. He shames America.

[Moses]

FOR IMMEDIATE RELEASE, November 15, 2004
Contact:  Michael Avery, NLG President, [e-mail]
617-335-5023
 <br>NATIONAL LAWYERS GUILD URGES SENATE TO REJECT
ALBERTO GONAZALES AS ATTORNEY GENERAL
 <br>Gonzales will continue Ashcroft policies that threaten
constitutional democracy
 <br>
The National Lawyers Guild (NLG) announced that it opposes the nomination of Alberto Gonzales for the position of Attorney General.

The NLG condemned Gonzales for his approval of the torture of prisoners in memos he adopted as White House Counsel.  The memos explained how American officials could escape legal liability for torture.  Gonzales rejected the applicability of the Geneva Conventions to prisoners taken during the “war against terrorism,” terming some of the Geneva provisions “quaint.”  The Guild said that Gonzales’s contempt for accepted international law principles rendered him unfit to serve as the head of the Justice Department.  <br>
NLG President Michael Avery declared that, “The Constitution requires that the United States treat international treaties that it has signed as the supreme law of the land in the United States.  It is the solemn obligation of the Attorney General to make sure that the United States complies with international law.  It would be outrageous for the nation’s top law enforcement officer to be contriving theories for American officials to avoid accountability for actions such as the torture of prisoners.”

The Guild also said that it was deeply concerned by Gonzales’s record in reviewing death penalty cases in Texas for then Governor Bush.  An analysis of Gonzales’s memos to the governor demonstrated that he repeatedly suppressed crucial facts that Bush should have considered in determining whether to grant clemency, such as “ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.”<br>
The Guild said that Gonzales’s radical ideological positions were responsible for the right-wing litmus test that he employed to recommend judicial nominees to President Bush.  Gonzales’s participation in the drafting of the USA PATRIOT Act demonstrates that he will continue the Ashcroft policy of sacrificing civil liberties in the name of the “war on terror.” 

The Guild called upon the Democrats in the Senate to filibuster if necessary to block the Gonzales nomination.  NLG President Michael Avery said, “The suggestion that has appeared in the media that Democrats may be afraid to oppose Gonzales because he is a Latino is offensive.  If Gonzales were living in a Latin American country he would no doubt be a member of a repressive oligarchy.  It would be wonderful to have a Latino Attorney General, but he or she should be someone who respects the rule of law.”  <br>
The National Lawyers Guild is an association of attorneys, law students and legal workers dedicated to the proposition that human rights are more important than property rights.  <br>



www.nlg.org/news/statements/gonzales_1104.htm

------------------------------------------------------------------------
National Lawyers Guild, National Office
143 Madison Ave 4th Fl., New York NY 10016
212 679-5100 FAX [phone]
[e-mail]
© 2003 National Lawyers. Guild All Rights Reserved.

[Moses]

 Worse Than Ashcroft
  By Nat Hentoff
  The Village Voice

  Monday 29 November 2004


Bush's new attorney general helped write the Patriot Act and supported torture.

His sharp intellect and sound judgment have helped shape our policies on the war on terror, policies designed to protect the security of all Americans while protecting the rights of all Americans.
    - George W. Bush, announcing the appointment of Alberto Gonzales as attorney general, The New York Times, November 11

The American people expect and deserve a Department of Justice guided by the rule of law.
    - Alberto Gonzales, accepting the nomination, The New York Sun, November 11

When you encounter a person who is willing to twist the law...even though for perhaps good reasons, you have to say you're really undermining the law itself.
    - Jim Cullen, retired chief judge of the U.S. Army Court of Criminal Appeals, referring to Alberto Gonzales, National Public Radio, November 11

---

  I do not approve of filibustering presidential nominees, no matter who is president, because the Constitution, along with the Federalist Papers, makes clear that the whole Senate is to give advice and consent to these presidential nominees. But if I were a senator, I would be sorely tempted to filibuster Alberto Gonzales. The Democrats, still shell-shocked by their second loss to Bush, and by the size of the Hispanic vote for the president, are not likely to filibuster Gonzales. But since Gonzales will be more dangerous to our liberties than Ashcroft, I will begin here to show how low the standards have become for the chief law enforcement officer of the nation. Maybe at least the American Bar Association and the Association of the Bar of the City of New York will stand up against Gonzales.

  I must credit National Public Radio's Nina Totenberg, an experienced analyst of constitutional law and a reporter who never stops digging to get to the core of Gonzales's ominous record as White House counsel. On November 11, she pointed out: "Gonzales was responsible for developing the administration's policies on the treatment of prisoners; for developing a new definition of torture to allow more aggressive questioning of prisoners. He developed the policy that allowed the indefinite detention of American citizens deemed to be enemy combatants without [being charged] or [having] access to counsel. . . . The Supreme Court, though, rejected that [Gonzales] theory . . .

  "Top legal brass in the army, air force, and navy say that Gonzales deliberately left them out of developing policy on the treatment of prisoners because he knew they would oppose."

  On November 10, Totenberg quoted retired general Jim Cullen of the U.S. Army Court of Criminal Appeals, who says Gonzales directly contradicted established military and international law. He added that Gonzales realized that "the Judge Advocate Generals Corps would never sanction departures from the Geneva Conventions or engaging in practices that the common man would regard as torture." (Emphasis added.)

  Says the Senate Judiciary Committee's clueless attack dog in these matters, Charles Schumer, about Gonzales: "I can tell you already he's a better candidate than John Ashcroft."

  There's a lot more about Alberto Gonzales that will prepare you for what to expect for the next four years from the Justice Department. In a January 2002 memorandum to George W. Bush, he emphasized that this new war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." (Emphasis added.)

  Gonzales also told George W. Bush that in denying these "detainees"-many of them now held at Guantánamo for nearly three years without charges-prisoner of war status under the Geneva Conventions, the president didn't have to worry about being held accountable by the courts. As commander in chief, his actions were unreviewable.

  Said the Supreme Court, in June, concerning the accuracy of the advice from the next attorney general of the United States about deep-sixing U.S. citizens, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of [American] citizens." And the Court also ruled he was wrong about the noncitizen prisoners at Guantánamo.

  Alberto Gonzales, moreover, will not in the least disturb John Aschroft's beloved USA Patriot Act, because Gonzales helped write it, and he wholly agrees with his patron, the president, that nothing in it should be changed despite the act's "sunset clause" that allows Congress to review sections of the act by December 2005.

  As the February 11 Financial Times reports, Gonzales, as counsel to the president, worked "to bar top White House officials from testifying before the commission that investigated the September 11 attacks." Nor has Gonzales shown any interest in an investigation of the accountability of leading administration officials, including their compliant lawyers, for the egregious abuses of the Abu Ghraib prisoners, to which Gonzales contributed.

  Bluntly, an editorial in Financial Times (not a notably radical newspaper) says of Gonzales: "As well as being a longtime personal friend of the president, he is publicly associated with discussion within the administration of how to sidestep national as well as international constraints on the use of torture in interrogation in the prison camp at Guantánamo."

  If there ever is an honest investigation of who is ultimately responsible for what happened there and at Abu Ghraib, Mr. Gonzales might well be in the dock, along with Donald Rumsfeld and a number of the defense secretary's closest aides.

  Next week: Alberto Gonzales's role, and record, as legal counsel to the then chief executioner of the United States, Texas Governor W. Bush, in deciding on the petitions for clemency from 57 of the 150 men and two women executed during Bush's six years as governor. Gonzales was central to amassing that record-unrivaled by any other governor.

  Those who know Gonzales, however, keep saying he's a nice guy.

[Moses]

Cloud Over the Constitution
The Democrats on the Senate Judiciary Committee lack the grit to stop Alberto Gonzales
December 10th, 2004 6:30 PM

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 George W. 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 . . . —Stuart Taylor Jr., former New York Times Supreme Court reporter, "America's Best Choice?," Legal Times, November 15, 2004

---

In a scathing lead editorial (November 22), "Mr. Gonzales' Record," The Washington Post challenged the Senate Judiciary Committee, which will soon hold a confirmation hearing on the president's appointment of Alberto Gonzales to be this nation's chief law enforcement officer, the daily protector of the Constitution: "Above all, Mr. Gonzales should answer this question [before the Senate Judiciary Committee]: Why is a lawyer whose opinions have produced such disastrous results for his government—in their practical application, in their effect on U.S. international standing and in their repeated reversal by U.S. courts—qualified to serve as attorney general?"

As I wrote in my last two columns, the editorial summarized some of the disastrous advice from this man without any law enforcement experience, who always tells George W. Bush what he wants to hear: authorization for torture of noncitizen detainees; approval of violations of international law; and the breathtaking assertion that the president, without going to the courts or to Congress, can imprison American citizens indefinitely, without charges, and without access to lawyers.

Actually, The Washington Post's challenge is to the Democrats on the Senate Judiciary Committee. The Republican members will vote, in lockstep, for Gonzales. But I have found out that most, if not all, of the Democrats will also cave in—after harrumphing at Gonzales for some hours.

I know this from an inside source whom I cannot name. I very rarely use blind sources, but there are times when to report on what's actually going on, I have to protect a source. The Democrats on the committee know what I, and others, have been telling you about Gonzales. In their possession, for instance, is a copy of the July/August 2003 Atlantic Monthly article by Alan Berlow that documents how Gonzales, as legal counsel to then Texas governor George W. Bush, sent 56 death row inmates to be executed after giving three-to-seven-page memos on their cases to Bush that rubber-stamped the lethal decision of the notoriously murderous Texas courts.

Even the Democrats' attack dog on the Judiciary Committee, Charles Schumer, has said he prefers Gonzales to John Ashcroft. That's like saying you prefer Torquemada to Attila the Hun. Indeed, the ranking minority member on the committee, Patrick Leahy, has said that with Bush re-elected, if he sent up Attila the Hun to replace Ashcroft, he'd get his way.

....As a result, for the next four years, the manipulative Alberto Gonzales will be finding additional ways to expand the Patriot Act, integrate the further surveillance of us all into government data banks, and, as he already has, make the Bush administration the most secretive in American history.

In a recent detailed summary of Gonzales's record as White House counsel, the Reporters Committee for Freedom of the Press (I'm on its steering committee) emphasized: "Alberto Gonzales has been an active defender of what is best described as a quasi-executive privilege, invoked repeatedly by the Bush administration in attempts to keep government information from public scrutiny."

So, as we are abandoned by the Democrats on the Judiciary Committee, what can we do? For one thing, keep in touch with the website of the Bill of Rights Defense Committee (bordc.org). It has a continuing record of cities and towns passing resolutions pressuring their members of Congress to pass liberating anti–Patriot Act (and future anti-Gonzales) legislation. (A number of such bills will be reintroduced in the next session of Congress.) And the website includes organizing strategies and useful news reports.

Also, while I have substantial differences with certain American Civil Liberties Union policies and with the quality of some of its top leadership, the ACLU staff is persistently effective in countering, through communication and lawsuits, the administration's subversion of the legacy of Samuel Adams, Thomas Jefferson, Eugene Debs, Bayard Rustin, and other freedom defenders.

The ACLU membership has increased in direct ratio to the ascendancy of Bush, Ashcroft, Rumsfeld, Gonzales, et al. And the more members it gets, the more it can accomplish. I suggest you join the ACLU (the national office is in New York: 125 Broad Street, 18th floor; Attention: membership department; NY, NY 10004; 212-549-2585).

Whenever I speak at a school, or at any gathering, I bring the late Supreme Court justice William O. Douglas into the conversation. As a defender of constitutional liberty, he was the direct opposite of Alberto Gonzales. The Constitution and the Bill of Rights, Douglas once wrote to a group of young lawyers, are not self-executing.

He warned: "As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness."

The changes in the air have become much more than slight. The twilight is deepening, but so is the resistance—despite the retreat of the Democrats on the Senate Judiciary Committee. The fatuous Michael Moore will not save us. Only we can. All through our history, dissent and resistance have beaten back the darkness. Tom Paine and Martin Luther King knew that, and like Joe Hill, their lives still resonate.

[Moses]

December 16, 2004

Ex-Military Lawyers Object to Bush Cabinet Nominee

By NEIL A. LEWIS

WASHINGTON, Dec. 15 - Several former high-ranking military lawyers say they are discussing ways to oppose President Bush's nomination of Alberto R. Gonzales to be attorney general, asserting that Mr. Gonzales's supervision of legal memorandums that appeared to sanction harsh treatment of detainees, even torture, showed unsound legal judgment.

Hearings before the Senate Judiciary Committee on the nomination are expected to begin next month. While Mr. Gonzales is expected to be confirmed, objections from former generals and admirals would be a setback and an embarrassment for him and the White House.

Rear Adm. John D. Hutson, who served as the Navy's judge advocate general from 1997 to 2000 before he retired, said that while Mr. Gonzales might be a lawyer of some stature, "I think the role that he played in the one thing that I am familiar with is tremendously shortsighted."

Mr. Gonzales, as White House counsel, oversaw the drafting of several confidential legal memorandums that critics said sanctioned the torture of terrorism suspects in Afghanistan and Guantánamo Bay, Cuba, and opened the door to abuses at the Abu Ghraib prison in Iraq.

A memorandum prepared under Mr. Gonzales's supervision by a legal task force concluded that Mr. Bush was not bound either by an international treaty prohibiting torture or by a federal antitorture law because he had the authority as commander in chief to approve any technique needed to protect the nation.

The memorandum also said that executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons, including a belief by interrogators that they were acting on orders from superiors "except where the conduct goes so far as to be patently unlawful." Another memorandum said the Geneva Conventions did not apply to the conflict in Afghanistan.

Mr. Hutson, who is dean and president of the Franklin Pierce Law Center in Concord, N.H., said that Mr. Gonzales "was not thinking about the impact of his behavior on U.S. troops in this war and others to come."

"He was not thinking about the United States' history in abiding by international law, especially in the wartime context," he said. "For that reason, some of us think he is a poor choice to be attorney general."

Mr. Hutson said talks with other retired senior military officials had not yet produced a decision on how to oppose the selection, though testifying at the hearings was a possibility. He said that while several opposed the nomination, some were unsure if opposition would be "worth the effort" because of little expectation the nomination could be derailed.

Brig. Gen. James Cullen, retired from the Army, said on Wednesday that he believed that in supervising the memorandums, Mr. Gonzales had purposely ignored the advice of lawyers whose views did not accord with the conclusions he sought, which was that there was some legal justification for illegal behavior.

"He went forum-shopping," General Cullen said, saying Mr. Gonzales had ignored the advice of military lawyers adamantly opposed to some of the legal strategies adopted, including narrowly defining torture so as to make it difficult to prove it occurred. "When you create these kinds of policies that can eventually be used against your own soldiers, when we say 'only follow the Geneva Conventions as much as it suits us,' when we take steps that the common man would understand is torture, this undermines what we are supposed to be, and many of us find it appalling," he said.

General Cullen, a lawyer in New York City, said the group of former military lawyers who oppose the nomination hoped to decide soon what specific action to take.

The memorandums produced largely by lawyers in the Justice Department and other government agencies created great bitterness at the time among military lawyers, who said they were not consulted.

Mr. Gonzales and the White House have already been put on notice by Senate Democrats that he should expect to be questioned vigorously about his role in the memorandums. Senator Patrick J. Leahy of Vermont, the Judiciary Committee's ranking Democrat, sent several letters to Mr. Gonzales, the most recent of which said that "you will be asked to describe your role in both the interpretation of the law and the development of policies that led to what I and many others consider to have been a disregard for the rule of law," the practices at Abu Ghraib. "You will be called upon to explain in detail your role in developing policies related to the interrogation and treatment of foreign prisoners."

When the memorandums began appearing this year in news accounts in The New York Times and elsewhere, the White House said in a statement that they had been only advisory opinions and that the administration did not and had not condoned torture or mistreatment.

In a confidential report this summer disclosed recently, the International Committee of the Red Cross said that the interrogation techniques regularly practiced at Guantánamo were tantamount to torture.

[Moses]

[Moses]

June 10, 2004

QUESTION: Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law.

So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?

BUSH: Look, I'm going to say it one more time. Maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you.

We're a nation of law. We adhere to laws. We have laws on the books. You might look at these laws. And that might provide comfort for you. And those were the instructions from me to the government.

[Moses]

Rewarding Alberto Gonzales

The New York Times
Thursday, January 6, 2005

Last week, the Bush administration put another spin on the twisted legal reasoning behind the brutalization of prisoners at military jails, apparently in hopes of smoothing the promotion of Alberto Gonzales, the White House counsel. Gonzales, who oversaw earlier memos condoning what amounts to torture and scoffed at the Geneva conventions, is being rewarded with the job of attorney general.

But the document only underscored the poor choice President George W. Bush made when he decided to elevate a man so closely identified with the scandal of Abu Ghraib, the contempt for due process at Guantánamo Bay and the seemingly unending revelations of the abuse of Afghan and Iraqi prisoners by American soldiers. Like Defense Secretary Donald Rumsfeld, the other chief architect of these policies, Gonzales shamed the United States and endangered American soldiers who may be taken prisoner in the future by condoning the sort of atrocious acts the United States has always condemned.

The Senate Judiciary Committee is scheduled to question Gonzales on Thursday, even though the White House has not released documents that are essential to a serious hearing. The committee has an obligation to demand these documents, and to compel Gonzales to account for administration policies, before giving him the top law-enforcement job.

After Sept. 11, 2001, with Americans intent on punishing those behind the terrorist attacks and preventing another calamity at home, the Bush administration had its lawyers review the legal status of Taliban and Al Qaeda prisoners, with an eye to getting around the Geneva conventions, other international accords and U.S. law on the treatment of prisoners.

Gonzales was the center of this effort. On Jan. 25, 2002, he sent Bush a letter assuring him that the war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." That August, Gonzales got a legal opinion from Jay Bybee, then the assistant attorney general, arguing that the president could suspend the Geneva conventions at will and that some forms of torture "may be justified." Rumsfeld's lawyers produced documents justifying the abuse of prisoners sent from Afghanistan to Guantánamo Bay. Gonzales approved those memos or didn't object.

On Thursday, more than eight months after the rotten fruits of those legal briefs were shown to the world at Abu Ghraib, the Justice Department issued yet another legal opinion. This time it rejected Bybee's bizarre notions that the president could be given the legal go-ahead to authorize torture, simply by defining the word so narrowly as to exclude almost anything short of mortal injury. We were glad to see that turnaround, although it was three years too late. Prisoners have already been systematically hurt, degraded, tortured and even killed. The international reputation of the United States is deeply scarred.

The new memo said that "torture is abhorrent," but it still goes beyond the limits of American values and international conventions. The administration now recognizes that the antitorture accord forbids the deliberate use of severe physical or mental pain and suffering to compel a prisoner to divulge information or cooperate in some other way - but it continues to draw fine lines about what that means.

For instance, the Geneva conventions say that it is torture when a prisoner suffers mentally from the use of mind-altering drugs or the threat of imminent death. But the administration's lawyers have decided that temporary trauma doesn't count, and that mental suffering is real only if it lasts for years. More than once, American soldiers have taken an Iraqi teenager and compelled him to dig his grave, then forced him to kneel, put a gun to his head and pulled the trigger in a mock execution. Is that not torture unless he's still upset about it in five years?

Even if the new memo could somehow magically sweep away all these deeply troubling aspects of the Gonzales nomination, there are other big questions about his background. He was a primary agent behind unacceptably restrictive secrecy policies, the proposed constitutional amendment banning gay marriage and the excessive authority to abuse civil liberties granted by the Patriot Act.

Republicans expect an easy confirmation, given their Senate majority. But at the very least, Gonzales should account for his actions. He should unequivocally renounce torture, without any fine-print haggling, as well as the other illegal treatment of prisoners in military jails. And he should explain how he would use his new job to clean up the mess he helped create.



 

[Moses]

Gonzales: The Fight Is On

Wed Jan 5, 5:19 PM ET

 Op/Ed - The Nation

Bruce Shapiro

It says something that the most vigorous opposition to Alberto Gonzales's nomination for US Attorney General emanates from recently retired military officers, not the civil rights lobby. It also says something that even as the White House, through a new Justice Department (news - web sites) memo, sought to defuse Gonzales's record as the legal godfather of Abu Ghraib and waterboarding, word leaked of an emerging Administration plan for lifetime internment of terror suspects, without trial, in a worldwide network of US-built prisons. This is the first Attorney General nomination of global consequence, a dimension to which Washington only slowly awakened as Gonzales headed into his testimony before the Senate Judiciary Committee.

 <br>From the day he was named by President Bush, Gonzales posed a dilemma for Democrats and civil rights organizations: Is this nominee worth fighting? Conventional wisdom counseled caution: As the first Latino AG nominee, he has a compelling personal yarn; he would secure easy confirmation from the Republican Senate; and besides, Gonzales is ABA--Anybody But Ashcroft. Democrats (notably New York's Chuck Schumer) immediately signaled their likely acquiescence. For weeks, most leading civil rights groups, with the exception of the defiant Center for Constitutional Rights, limited themselves to toothless calls for "vigorous scrutiny." The best liberals could hope for, went the insiders' whispers, would be to "make a record" that might inhibit a future Gonzales nomination to the Supreme Court.


On the eve of the Gonzales hearings, a different dynamic began to emerge. First the Justice Department published a memo "superseding" the elaborate justification for torture Gonzales himself had commissioned from the Office of Legal Counsel's Jay Bybee: a new memo so patently timed to the hearings that it only made questions for the nominee more compelling, especially since the White House continued to withhold crucial documents detailing Gonzales's role in the torture scandal. Notable, too, was the new memo's overt evasion of the original Bybee document's assertion of unreviewable presidential authority to classify prisoners outside the protections of the Geneva Conventions and torture laws.


Then the intervention of a dozen retired high-ranking military officers--some of them lifelong Republicans--made it clear that this is no ordinary confirmation fight. No domestic Cabinet nominee has ever been charged by generals with having "fostered greater animosity toward the United States, undermined our intelligence gathering efforts and added to the risks facing our troops around the world." These career officers--who take their oaths to the Constitution, not George Bush --believe that Gonzales's legal tactics are wrecking years of post-Vietnam efforts to prevent contemporary My Lais.


It's one thing for the ACLU to criticize Gonzales, quite another when he gets denounced by the very military leadership Republicans have long claimed to stand for. The officers' letter provided covering fire as People for the American Way--until January in the "cautious scrutiny" camp--added its full-throated opposition, and religious leaders began to speak up.


These retired officers (and Human Rights First, which sponsored their press conference) remembered what Democratic pragmatists forgot in the despairing weeks of November: For reasons ranging from ideology to personal malfeasance, seemingly secure Cabinet confirmations can spin wildly out of control when the heat is on--witness John Tower and Zoë Baird. And Gonzales is not universally admired in the Senate Republican Caucus. Lindsey Graham of South Carolina, formerly with the military's legal corps, remains disgusted by Abu Ghraib and the chain of decisions that led to it. Just days before Gonzales's hearing, Senator Richard Lugar blasted the new White House internment-without-trial plan. (That plan, depending on the existence of authoritarian allies to do our dirty work, suggests just how cynical is the President's "democracy on the march" rhetoric.)


So the fight is joined. Gonzales, it is true, is not a fanatical religious conservative or an orthodox strict constructionist. His record suggests instead an enthusiastic apostle of the imperial executive. "Making a record" in the event of his Supreme Court nomination is at best secondary: The far more immediate danger is the record he will make as Attorney General, and the record of defeatism Democrats will establish if they offer anything less than principled opposition. With the Gonzales fight, the Senate--Democrats and Republicans alike--directly confronts issues that have lurked in the background for four years: questions not just of human rights for terrorism suspects worldwide but of a presidency absorbed in its own quest for unrestrained power, both domestic and international.

[Moses]

Gonzales sought DOJ memo justifying torture


Washington, DC, Jan. 5 (UPI) -- White House counsel Alberto Gonzales pushed for a legal ruling in 2002 on the president's ability to permit extreme interrogation methods in the war on terror.


Current and former administration officials say Gonzales' requested ruling led to the controversial Justice Department memo dated Aug. 1, 2002, which sought to undermine certain Geneva Convention provisions and justify some forms of torture and is sure to be in the spotlight during his Senate confirmation hearings on his nomination to be U.S. attorney general, the New York Times reported.

White House spokeswoman Erin Healy said Tuesday while Gonzales asked for the August opinion, he was only looking for "objective legal advice and did not ask the Office of Legal Counsel to reach any specific conclusion.

[Moses]

White House counsel intervened with controversial ruling on torture: report[/b][/url]

www.chinaview.cn 2005-01-05 23:56:57

WASHINGTON, Jan. 5 (Xinhuanet) -- Alberto R. Gonzales, the White House counsel and President George W. Bush's nominee for attorney general, intervened directly with Justice Department lawyers in 2002 to obtain a controversial legal ruling on the extent of the president's authority to permit extreme interrogation practices, The New York Times reported Wednesday.

Gonzales's role in seeking a legal opinion on the definition oftorture and the legal limits on the force that could be used on terrorist suspects in captivity is expected to be a central issue in the Senate Judiciary Committee confirmation hearings scheduled to begin Thursday.

The Justice Department produced the much-debated memorandum on Aug. 1, 2002, which concluded that interrogators had great leeway to question detainees using coercive techniques and said that Bushcould circumvent domestic and international prohibitions against torture in the name of national security.

As the White House's chief lawyer, Gonzales supervised the production of a number of legal memorandums that shaped the administration's legal framework for conducting its battle against Al Qaeda and other terrorist groups. He wrote in a memorandum dated January 2002 that the Geneva Conventions did not apply to fighters captured in Afghanistan.

The next month the White House decided that the Geneva Conventions would be applied to Taliban captives but not to detainees linked to Al Qaeda.

The Justice Department formally rescinded the Aug. 1, 2002 memorandum last week and replaced it with a legal opinion saying that "torture is abhorrent both to American law and values and international norms."

The Times report said, quoting current and former officials, that Gonzales's request resulting in the original memorandum was somewhat unusual. He went directly to lawyers at the Office of Legal Counsel, bypassing the office of the deputy attorney general,which is often notified of politically delicate requests for legalopinions made by executive-branch agencies, including the White House, the report said.

Democrats and human rights groups have complained that the memorandum created a permissive atmosphere that led to serious abuses of detainees in Iraq, Afghanistan and Guantanamo Bay, Cuba.

A senior administration official said the memorandum's conclusions appeared to closely align with the prevailing White House view of interrogation practices, according to the Times.

[Moses]

  <br>Bush aide intervened to get ruling

By David Johnston and Neil A. Lewis The New York Times
Thursday, January 6, 2005[/size]

Terror document apt to figure in hearings
 <br>WASHINGTON Alberto Gonzales, the White House counsel, intervened directly with Justice Department lawyers in 2002 to obtain a legal ruling on the extent of the president's authority to permit extreme interrogation practices in the name of national security, current and former administration officials said.
Gonzales's role in seeking a legal opinion on the definition of torture and the legal limits on the force that could be used on terrorist suspects in captivity is expected to be a central issue in the Senate Judiciary Committee confirmation hearings scheduled to begin on Thursday on his nomination to be attorney general.
The request by Gonzales produced the much-debated Justice Department memorandum of Aug. 1, 2002, which defined torture narrowly and said that President George W. Bush could circumvent domestic and international prohibitions against torture in the name of national security.

Until now, administration officials have been unwilling to provide details about the role Gonzales had in the production of the memorandum by the Justice Department's Office of Legal Counsel. Gonzales has spoken of the memorandum as a response to questions, without saying that most of the questions were his.

Current and former officials who talked about the memorandum have been provided with firsthand accounts about how it was prepared. Some discussed it in an effort to clear up what they viewed as a murky record in advance of Gonzales's confirmation hearings. Others spoke of the matter apparently believing that the Justice Department had unfairly taken the blame for the memorandum.

A White House spokeswoman, Erin Healy, said Tuesday that while Gonzales personally requested the August opinion, he was only seeking "objective legal advice and did not ask the Office of Legal Counsel to reach any specific conclusion."

As the White House's chief lawyer, Gonzales supervised the production of a number of legal memorandums that shaped the administration's legal framework for conducting its battle against Al Qaeda and other terrorist groups. Of the documents that have been made public, only one was written by Gonzales. In that memorandum, dated January 2002, he advised Bush that the Geneva Conventions did not apply to fighters captured in Afghanistan. The next month the White House decided that the Geneva Conventions would be applied to Taliban captives but not to detainees linked to Al Qaeda.

As a result, a major area of questioning at his confirmation hearing is expected to be the role he played in the production of the other documents, like the August 2002 memorandum. That memorandum concluded that interrogators had great leeway to question detainees using coercive techniques that they could assert were not torture.

The Justice Department formally rescinded the August memorandum last week and in its place issued a legal opinion saying that torture should be more broadly defined and that there was no need to say that Bush had the authority to sanction torture because he has said unequivocally that it is not permitted.
The revision stated that "torture is abhorrent both to American law and values and international norms." It rejected the language in the earlier memorandum, which said that only physical pain "of an intensity akin to that which accompanies serious physical injury such as death or organ failure" constituted torture punishable by law.

Gonzales's request resulting in the original August 2002 memorandum was somewhat unusual, the officials said, because he went directly to lawyers at the Office of Legal Counsel, bypassing the office of the deputy attorney general, which is often notified of politically delicate requests for legal opinions made by executive-branch agencies, including the White House.

The memorandum has become a hotly debated legal document in the so-called war on terror. Democrats and human rights groups have said that it created a permissive atmosphere that led to serious abuses of detainees in Iraq, Afghanistan and Guantánamo Bay, Cuba. The memorandum was addressed to Gonzales and was signed by Jay Bybee, then the head of the Office of Legal Counsel at the Justice Department. [Who Bush then promoted to the Federal Bench in the 9th Circuit]

Officials dispute how much senior Justice Department officials knew of the memorandum as it was being prepared. A former official and a current one said that neither Attorney General John Ashcroft nor his deputy, Larry Thompson, was aware of the memorandum until it was about to be submitted to the White House.

Another former official said, however, that they were given progress reports as the memorandum took shape.

John Yoo, a senior Justice Department lawyer who wrote much of the memorandum, exchanged draft language with lawyers at the White House, the officials said. Yoo, now a law professor at the University of California at Berkeley, said in an article published Sunday in The San Jose Mercury News that Gonzales did not apply any pressure on him to tailor the memorandum to accommodate the White House.

Copyright © 2005 The International Herald Tribune | www.iht.com

 

[Moses]

Gonzales Helped Set the Course for Detainees
Justice Nominee's Hearings Likely to Focus on Interrogation Policies

By R. Jeffrey Smith and Dan Eggen
Washington Post Staff Writers
Wednesday, January 5, 2005; Page A01


....Gonzales, working closely with a small group of conservative legal officials at the White House, the Justice Department and the Defense Department -- and overseeing deliberations that generally excluded potential dissenters -- helped chart other legal paths in the handling and imprisonment of suspected terrorists and the applicability of international conventions to U.S. military and law enforcement activities.

His former colleagues say that throughout this period, Gonzales -- a confidant of George W. Bush's from Texas and the president's nominee to be the next attorney general -- often repeated a phrase used by Defense Secretary Donald H. Rumsfeld to spur tougher anti-terrorism policies: "Are we being forward-leaning enough?"

But one of the mysteries that surround Gonzales is the extent to which these new legal approaches are his own handiwork rather than the work of others, particularly Vice President Cheney's influential legal counsel, David S. Addington.

Gonzales's involvement in the crafting of the torture memo, and his work on two presidential orders on detainee policy that provoked controversy or judicial censure during Bush's first term, is expected to take center stage at Senate Judiciary Committee hearings tomorrow on Gonzales's nomination to become attorney general. The outlines of Gonzales's actions are known, but new details emerged in interviews with colleagues and other officials, some of whom spoke only on the condition of anonymity because they were involved in confidential government policy deliberations.

On at least two of the most controversial policies endorsed by Gonzales, officials familiar with the events say the impetus for action came from Addington -- another reflection of Cheney's outsize influence with the president and the rest of the government. Addington, universally described as outspokenly conservative, interviewed candidates for appointment as Gonzales's deputy, spoke at Gonzales's morning meetings and, in at least one instance, drafted an early version of a legal memorandum circulated to other departments in Gonzales's name, several sources said.

Conceding that such ghostwriting might seem irregular, even though Gonzales was aware of it, one former White House official said it was simply "evidence of the closeness of the relationship" between the two men. But another official familiar with the administration's legal policymaking, who spoke on the condition of anonymity because such deliberations are supposed to be confidential, said that Gonzales often acquiesced in policymaking by others.

This might not be the best quality for an official nominated to be attorney general, the nation's top law enforcement job, the administration official said. He added that he thinks Gonzales learned from mistakes during Bush's first term.

.... when the Justice Department formally repudiated the legal reasoning of the August 2002 interrogation memo last week in another document that Gonzales reviewed, it was overturning a policy with consequences that Gonzales heard discussed in intimate detail -- to the point of learning what the physiological reactions of detainees might be to the suffering the CIA wanted to inflict, those involved in the deliberations said.

A Success Story


Bush has told people that he was attracted by Gonzales's rags-to-riches life story. A Texas native and the son of Mexican immigrants, Gonzales served for two years in the Air Force before graduating from Rice University and Harvard Law School. He met Bush during his 1994 gubernatorial campaign, while Gonzales was a partner at the politically connected Houston law firm Vinson & Elkins.

Upon election, Bush appointed him as his personal counsel, later as Texas secretary of state and eventually as a justice on the Texas Supreme Court. Within weeks of the 2000 presidential election, Bush tapped Gonzales to be his White House counsel, and Gonzales set about creating what officials there proudly described as one of the most ideologically aligned counsel's offices in years.

Bringing only one associate to Washington from Texas, Gonzales forged his staff instead from a tightknit group of Washington-based former clerks to Supreme Court or appellate judges, all of whom had worked on at least one of three touchstones of the conservative movement: the Whitewater and Monica S. Lewinsky inquiries of former president Bill Clinton, the Bush-Cheney election campaign, and the Florida vote-counting dispute.

"It was an office of like-minded" lawyers and "strong personalities," said Bradford A. Berenson, a criminal defense lawyer appointed as one of eight associate counsels in Gonzales's office. "There was not a shrinking violet in the bunch."

"Federalist Society regulars" is the way another former associate counsel, H. Christopher Bartolomucci, described the Gonzales staff and its ideological allies elsewhere in the government, such as Deputy Assistant Attorney General John Yoo and Defense Department General Counsel William J. Haynes II. All were adherents to the theory that the Constitution gives the president considerably more authority than the Congress and the judiciary.

One of the clearest examples of this ambition was Gonzales's long-running and ultimately futile battle with the independent commission that investigated the Sept. 11, 2001, terrorist attacks. Gonzales's office, acting as the liaison between the White House and the 10-member bipartisan panel, repeatedly resisted commission demands for access to presidential documents and officials such as national security adviser Condoleezza Rice, prompting angry and public disputes.

Gonzales is "a good lawyer and a nice guy, and maybe he was a decent judge for a year, but he didn't bring a lot of political judgment or strategic judgment to their dealings with the commission," a senior commission official said. "He hurt the White House politically by antagonizing the commissioners . . . and all of it for no good reason. In the end, the stuff all came out."


....Current and former White House officials interviewed for this article listed only a few episodes in which Gonzales forcefully pressed a position at odds with ideological conservatives. None was in the terrorism field.


Detainee Policy


Unlike many of his predecessors since the Reagan era, Gonzales lacked much experience in federal law and national security matters. So when the Pentagon worried about how to handle expected al Qaeda detainees in the days after the Sept. 11 attacks and the Oct. 7 U.S. attack on Afghanistan, Gonzales organized an interagency group to take up the matter under the State Department's war crimes adviser, Pierre-Richard Prosper.

Former attorney general William P. Barr suggested to Gonzales's staff early on that those captured on the battlefield go before military tribunals instead of civil courts. But Ashcroft and Michael Chertoff, his deputy for the criminal division, both adamantly opposed the plan, along with military lawyers at the Pentagon. The result was that the process moved slowly.

Addington was the first to suggest that the issue be taken away from the Prosper group and that a presidential order be drafted authorizing the tribunals that he, Gonzales and Timothy E. Flanigan, then a principal deputy to Gonzales, supported. It was intended for circulation among a much smaller group of like-minded officials. Berenson, Flanigan and Addington helped write the draft, and on Nov. 6, 2001, Gonzales's office secured an opinion from the Justice Department's Office of Legal Counsel that the contemplated military tribunals would be legal.

That office, historically the government's principal internal domestic law adviser, was also staffed by advocates of expansive executive powers; it had told the White House in a classified memo five weeks earlier that the president's authority to wage preemptive war against suspected terrorists was virtually unlimited, partly because proving criminal responsibility for terrorist acts was so difficult.

After a final discussion with Cheney, Bush signed the order authorizing military tribunals on Nov. 13, 2001, while standing up, as he was on his way out of the White House to his Texas ranch for a meeting with Russian President Vladimir Putin. It provided for the military trial of anyone suspected of belonging to al Qaeda or conspiring to conduct or assist acts of terrorism; conviction would come from a two-thirds vote of the tribunal members, who would adjudicate fact and law and decide what evidence was admissible. Decisions could not be appealed.

Cut out in the final decision making were military lawyers, the State Department and Chertoff, as well as Rice, her deputy, Stephen J. Hadley, and Rice's legal adviser, John Bellinger. .... David Bowker, then a State Department lawyer excluded from the process and now in private practice, called the order premature and politically unwise. "The right thing to do would have been an open process inside the government," he said.

The tribunals were halted by U.S. District Judge James Robertson, who ruled on Nov. 24, 2004, that detainees' rights are guaranteed by the Geneva Conventions -- which the administration had argued were irrelevant.

[Moses]

Rebellion at State


Four weeks after Bush's executive order, a similarly limited deliberation provoked more determined rebellion at the State Department and among military lawyers and officers. The issue was whether al Qaeda and Taliban fighters captured on the battlefield in Afghanistan should be accorded the Geneva Conventions' human rights protections.

Gonzales, after reviewing a legal brief from the Justice Department's Office of Legal Counsel, advised Bush verbally on Jan. 18, 2002, that he had authority to exempt the detainees from such protections. Bush agreed, reversing a decades-old policy aimed in part at ensuring equal treatment for U.S. military detainees around the world. Rumsfeld issued an order the next day to commanders that detainees would receive such protections only "to the extent appropriate and consistent with military necessity."

Secretary of State Colin L. Powell -- whose legal adviser, William H. Taft IV, had vigorously tried to block the decision -- then met twice with Bush to convince him that the decision would be a public relations debacle and would undermine U.S. military prohibitions on detainee abuse. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, backed Powell, as did the leaders of the U.S. Central Command who were pursuing the war.

{b]The task of summarizing the competing points of view in a draft letter to the president was seized initially by Addington[/b]. A memo he wrote and signed with Gonzales's name -- and knowledge -- was circulated to various departments, several sources said. A version of this draft, dated Jan. 25, 2002, was subsequently leaked. It included the eye-catching assertion that a "new paradigm" of a war on terrorism "renders obsolete Geneva's strict limitations on questioning of enemy prisoners."

In early February 2002, Gonzales reviewed the issue once more with Bush, who reaffirmed his initial decision regarding his legal authority but chose not to invoke it immediately for Taliban members. Flanigan said that Gonzales still disagreed with Powell but "viewed his role as trying to help the president accommodate the views of State."

Thirty months later, a Defense Department panel chaired by James R. Schlesinger concluded that the president's resulting Feb. 7 executive order played a key role in the Central Command's creation of interrogation policies for the Abu Ghraib prison in Iraq.

A former senior military lawyer, who was involved in the deliberations but spoke on the condition of anonymity, complained that Gonzales's counsel's office had ignored the language and history of the conventions, treating the question "as if they wanted to look at the rules to see how to justify what they wanted to do."

"It was not an open and honest discussion," the lawyer said.

For Gonzales's aides, however, the experience only reinforced a concern that the State Department and the military legal community should not be trusted with information about such policymaking. State "saw its mission as representing the interests of the rest of the world to the president, instead of the president's interests to the world," one aide said.

The Debate Over Torture


This schism created additional problems when Gonzales approved in August 2002 -- after limited consultation -- an Office of Legal Counsel memo suggesting various stratagems that officials could use to defend themselves against criminal prosecution for torture.

Drafted at the request of the CIA, which sought legal blessing for aggressive interrogation methods for Abu Zubaida and other al Qaeda detainees, the memo contended that only physically punishing acts "of an extreme nature" would be prosecutable. It also said that those committing torture with express presidential authority or without the intent to commit harm were probably immune from prosecution.

The memo was signed by Jay S. Bybee, then an assistant attorney general and now a federal appellate judge, but written with significant input from Yoo, whom Gonzales had tried to hire at the White House and later endorsed to head Justice's legal counsel office. During the drafting of the memo, Yoo briefed Gonzales several times on its contents. He also briefed Ashcroft, Bellinger, Addington, Haynes and the CIA's acting general counsel, John A. Rizzo, several officials said.

At least one of the meetings during this period included a detailed description of the interrogation methods the CIA wanted to use, such as open-handed slapping, the threat of live burial and "waterboarding" -- a procedure that involves strapping a detainee to a board, raising the feet above the head, wrapping the face and nose in a wet towel, and dripping water onto the head. Tested repeatedly on U.S. military personnel as part of interrogation resistance training, the technique proved to produce an unbearable sensation of drowning.

State Department officials and military lawyers were intentionally excluded from these deliberations, officials said. Gonzales and his staff had no reservations about the legal draft or the proposed interrogation methods and did not suggest major changes during the editing of Yoo's memo, two officials involved in the deliberations said.

The memo defined torture in extreme terms, said the president had inherent powers to allow it and gave the CIA permission to do what it wished. Seven months later, its conclusions were cited approvingly in a Defense Department memo that spelled out the Pentagon's policy for "exceptional interrogations" of detainees at Guantanamo Bay, Cuba.

When the text was leaked to the public last summer, it attracted scorn from military lawyers and human rights experts worldwide. Nigel Rodley, a British lawyer who served as the special U.N. rapporteur on torture and inhumane treatment from 1993 to 2001, remarked that its underlying doctrine "sounds like the discredited legal theories used by Latin American countries" to justify repression.

After two weeks of damaging publicity, Gonzales distanced himself, Bush and other senior officials from its language, calling the conclusions "unnecessary, over-broad discussions" of abstract legal theories ignored by policymakers. Another six months passed before the Office of Legal Counsel, under new direction, repudiated its reasoning publicly, one week before Gonzales's confirmation hearing.