In March 2002, U.S. elation at the
capture of al Qaeda operations chief Abu Zubaida was turning to
frustration as he refused to bend to CIA interrogation. But the agency's officers, determined to
wring more from Abu Zubaida through threatening interrogations,
worried about being charged with violating domestic and international
proscriptions on torture.
They asked for a legal review -- the first ever by the government --
of how much pain and suffering a U.S. intelligence officer could
inflict on a prisoner without violating a 1994 law that imposes severe
penalties, including life imprisonment and execution, on convicted
torturers. The Justice Department's Office of Legal Counsel took up the task, and at
least twice during the drafting, top administration officials were
briefed on the results.
White House counsel Alberto R.
Gonzales chaired the meetings on this issue, which included detailed
descriptions of interrogation techniques such as "waterboarding," a
tactic intended to make detainees feel as if they are drowning. He
raised no objections and, without consulting military and State
Department experts in the laws of torture and war, approved an August
2002 memo that gave CIA interrogators the legal blessings they sought.
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
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
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.
Supporters of Gonzales depict him as a
more pragmatic successor to John D. Ashcroft, and a cautious lawyer
who carefully weighs competing points of view while pressing for
aggressive anti-terrorism efforts. His critics have expressed alarm at
what they regard as his record of excluding dissenting points of view
in the development of legal policies that fail to hold up under
broader scrutiny and give short shrift to human rights.
His nomination has, in short, become
another battleground for the debate over whether the administration
has acted prudently to forestall another terrorist attack or
overreached by legally sanctioning rights abuses.
One thing is clear: Gonzales, 49,
enjoys Bush's trust. He has worked directly with the former Texas
governor for more than nine years, advising him on sensitive foreign
policy and defense matters that rarely -- if ever -- fell within the
purview of previous White House counsels.
For example, 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.
The White House said Gonzales and
Addington, a former Reagan aide and Pentagon counsel, were unavailable to be interviewed for this
article. But asked to comment on whether Gonzales acquiesced too
easily on legal policies pushed by others, spokesman Brian Besanceney
responded that Gonzales had "served with distinction and with the
highest professional standards as a lawyer" in private practice, state
government and the White House, and he "will continue to do so as
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
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
"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."
Each morning, Gonzales convened round
tables at which his staff -- as well as Addington -- related their
legal conundrums. Gonzales was "not a domineering personality . . .
and he gave us a chance to speak our minds," said Helgi C.
Walker, a former clerk for Clarence Thomas who was an associate counsel from 2001 to 2003.
"There was often a lively debate, but
at the end it was not clear where Gonzales was," another former
colleague said. A second former colleague recalls that in interagency
meetings, Gonzales sat in the back and was "unassuming, pleasant and
quiet." So discreet was Gonzales about his opinions that one official
who worked closely with him for a year said "he never made an
impression on me."
But Berenson says Gonzales was hardly
pushed around by officials who thought they had a monopoly on wisdom.
"I didn't have the sense that he was whipping his horses or that they
were dragging him along behind them," he said, adding that Gonzales
was "neither the tool of an aggressive staff nor the quarterback of a
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.
Walker said she is aware of criticism
that Gonzales "should have been saying 'I believe this or that' "
about some of the provocative issues presented to him. "He did not see
his job as being about him" but about advocating Bush's interests, she
explained. "The judge is not consumed with his own importance, unlike
some others in Washington."
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
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. "I don't think Gonzales felt he was acting precipitously,
but he realized people would be surprised," Flanigan said. It amounted
to a decision that the president could act without "the entire staff's
blessing. As it turned out, they [National Security Council officials]
just weren't involved in the process."
Berenson, who left the White House for
private practice in 2003, said "there were such strong shared
assumptions at the time [that]we had a powerful sense of mission." He
attributes the haste to worry about another terrorist attack.
But 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.
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.
The task of summarizing the competing
points of view in a draft letter to the president was seized initially
by Addington. 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
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.
(The Washington Post)