Senators Quiz Gonzales on Torture Policy

Attorney general nominee Alberto R. Gonzales conceded Thursday that he had participated in Bush administration discussions about the outer bounds of the use of torture, but asserted that it wasn’t his job as the president’s lawyer to develop the policies that have triggered severe criticism.

Gonzales’ lawyerly defense against allegations that he had helped craft administration policies that contributed to abuses of military prisoners in Cuba and Iraq came at a confirmation hearing before the Senate Judiciary Committee that appeared to foreshadow his easy approval as the first Latino attorney general.

The 49-year-old White House counsel condemned torture and said he was sickened by photographs of military interrogators abusing prisoners in Iraq.

Gonzales acknowledged that he took part in discussions with Justice Department lawyers in the summer of 2002 that led to a ruling by the department’s Office of Legal Counsel that condoned harsh treatment of prisoners.

But he rejected suggestions that administration policies, including the Justice Department memo, which the department repudiated last week, contributed to the abuses that have since come to light. He said it was always Bush administration policy that the prisoners be treated humanely.

Gonzales vigorously defended a legal opinion he wrote in January 2002 that held that suspected terrorists picked up in Afghanistan were not entitled to protections as prisoners of war under the Geneva Convention. He revealed that administration lawyers had informally discussed whether the U.S. should seek changes in the 56-year-old treaty.

The hearings for the longtime confidant of President Bush illustrated the concern about his nomination among human rights groups as well as the political reality of the newly emboldened Republican majority in Congress.

Dozens of opponents, some wearing T-shirts with the message “Investigate Gonzales,” packed the hearing room. They were joined by veterans groups and military lawyers concerned that aggressive interrogation techniques that they say Gonzales nurtured had put U.S. troops in danger of retaliatory torture.

Democrats questioned the candor of some of Gonzales’ answers in the hearing, as well as his defense of the administration’s decision-making process. They also expressed dismay at his apparently passive role in forging policies on the treatment of prisoners.

But their sometimes sharp questioning was done in a friendly atmosphere -- at a hearing that lasted only a day -- that made his eventual confirmation by the Senate virtually a foregone conclusion.

One reason is that he is considered a moderate on many social issues compared with the man he would replace, former Missouri Sen. John Ashcroft.

The Senate is expected to vote this month on the nomination. The committee’s new chairman, Sen. Arlen Specter (R-Pa.), said the panel could vote before Bush is inaugurated Jan. 20 for a second term.

On other issues, Gonzales indicated he was receptive to review of the Patriot Act, the terrorism-fighting law passed after the Sept. 11 attacks, saying the use of government power should be the subject of regular scrutiny.

He said he would make civil rights and immigrant issues a priority, and spoke of the need for government to provide reentry support for the growing number of people leaving the nation’s prisons every year.

He said he considered the question of abortion rights closed, given Supreme Court rulings over the last three decades on the right to privacy. “My judgment is that the court has had ample opportunity to look at this issue,” he said. “So far as I am concerned,” he added, the right to abortion is “the law of the land, and I will enforce it.”

Gonzales is considered a candidate for the high court if a vacancy should occur, and his views in support of abortion rights have made him a target of the religious right.

A number of committee members acknowledged the possibility that Gonzales might appear in the future before the same panel as a nominee to the high court, and indicated he would be in for rougher questioning for that lifetime appointment.

“No one should mistake the votes here as a ratification, because it’s a different job -- it’s a lower standard,” said Sen. Charles E. Schumer (D-N.Y.).

But if Democrats viewed the hearing as an opportunity to hold the administration responsible for the treatment of prisoners and the abuses in military facilities abroad, they came away empty-handed.

They said they were assured by Gonzales’ repudiation of the worst kinds of torture and abuse, but complained that the nation’s image had been stained and that no one in the administration was being held to account.

“What was lacking in this hearing was a fuller measure of accountability, something that has long been lacking from this administration,” said Vermont Sen. Patrick J. Leahy, senior Democrat on the Judiciary Committee. “The Bush administration’s torture policy seems to have been created through spontaneous combustion. No one will take responsibility for it.”

Gonzales’ known ties to the torture scandal come through a series of three memos, starting with a January 2002 opinion holding that terrorism suspects picked up on the battlefields of Afghanistan did not qualify for prisoner-of-war protections under the Geneva Convention.

He also solicited the since-disavowed August 2002 Justice memo, which offered up defenses for U.S. operatives accused of torture so long as they did not inflict pain equivalent to that of serious injury such as organ failure or death, and held that the president could essentially ignore federal anti-torture laws in the name of national security. Language from that opinion made its way into ground rules that Pentagon lawyers devised on the eve of the war in Iraq for interrogating prisoners at the U.S. naval base at Guantanamo Bay, Cuba.

The cumulative effect of the rulings, critics say, was the abuses that Gonzales and other administration officials now decry. But Republicans defended him; Sen. John Cornyn of Texas said he was being attacked for “a memo he didn’t write, interpreting a law he didn’t draft.”

In his testimony, Gonzales also defended the work, saying that it represented the best judgments of administration lawyers on how to handle an enemy that did not play by the normal rules of war.

He acknowledged being involved in discussions that led to the creation of the Justice memo, and said that he embraced the decision at the time because the Justice Department -- not the office of White House counsel -- was responsible for developing executive branch legal positions.

“I felt I had an obligation as a prudent lawyer to check with the professionals at the Department of Justice,” he said. “There was give-and-take; there were discussions about the opinion. But ultimately, the opinion represents the position of the Department of Justice, and as such, it’s the position that I supported at the time.”

Pressed by several Democrats about whether he personally agreed with the conclusions of the memo, Gonzales demurred, noting that a new opinion on the subject from the Justice Department issued last week rejected the most controversial aspects of the earlier document -- albeit more than two years after it was issued.

The original memo “does not represent the views of the executive branch. It has been replaced by a new opinion ... and so as far as I am concerned it is not an issue,” Gonzales said.

Democrats said he had a legal and moral duty to speak up sooner.

“You never repudiated it. That’s the record. You never repudiated it,” said Sen. Edward M. Kennedy of Massachusetts, adding that the failure to do so made “hollow” the president’s directive that soldiers act humanely.

Gonzales also acknowledged participating in a meeting in his office in which the legality of interrogation techniques such as the threat of live burial and water boarding -- in which the head of a detainee is wrapped in wet towels and water is dripped on the head to create a sensation of drowning -- were discussed.

But the nominee said he never pressured anyone to approve those techniques as lawful. He said he could not recall whether he said at the time that he considered the techniques offensive.

Even some Republicans said they were concerned that Gonzales seemed detached from the process as it unfolded.

The language from the Justice memo led to rules for interrogations at Guantanamo Bay, despite a series of memos from career military lawyers who criticized the new rules as too permissive.

Gonzales said that he did not recall ever reading those critical memos.

“That to me is a bit disturbing, because you were sort of out of the loop,” said Sen. Lindsey Graham, (R-S.C.). The Justice memo “launched a thought process in the Department of Defense that divided the department. And I think you need to know this, and go back and study how this happened.”

Gonzales responded that he felt that the Justice lawyers “did the very best they could interpreting, in my judgment, a difficult statute. So I think they did the very best they could.”

“Well, that’s where me and you disagree,” said Graham, a reserve judge advocate in the Air Force. “I think they did a lousy job.”