Newsweek’s Michael Isikoff, Daniel Klaidman and Michael Hirsh predict a rough ride for Alberto “El Verdugo” Gonzales.
Sources close to the Senate Judiciary Committee say a chief focus of the hearings will be Gonzales’s role in the so-called “torture memo,” as well as his legal judgment in urging Bush to sidestep the Geneva Conventions. In a Jan. 25, 2002, memo to Bush, Gonzales said the new war on terror “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Some State Department lawyers charge that Gonzales misrepresented so many legal considerations and facts (including hard conclusions by State’s Southeast Asia bureau about the nature of the Taliban) that one lawyer considers the memo to be “an ethical breach.”
By several accounts, Gonzales and his team were constantly looking to push legal limits, to widen and maximize Bush’s powers. Just two weeks after September 11, an earlier secret memo drafted by Yoo had landed on Gonzales’s desk, arguing there were effectively “no limits” on Bush’s powers to respond to the attacks. Startlingly, the memo said the president could deploy military force “pre-emptively” against terror groups or entire countries that harbored them, “whether or not they can be linked to the specific terror incidents of Sept. 11.” The president’s decisions “are for him alone and are unreviewable,” the memo said. Never before disclosed, the Sept. 25, 2001, memo was quietly posted on an obscure government Web site late last week. The 15-page memo is the earliest known statement of Bush’s doctrine of pre-emptive war.
Last June, Gonzales indicated he no longer held some of the extreme views of the president’s “unlimited” powers first laid out in this memo. Amid the furor over the Abu Ghraib Prison photos that depicted Iraqis being abused and humiliated by U.S. soldiers, Gonzales insisted to reporters that the “torture” memo of Aug. 1 and other documents then making headlines were little more than “irrelevant” legal theorizing. It is not surprising why Gonzales was distancing himself: the Justice Department’s Office of Professional Responsibility recently launched an investigation into the origins of the Aug. 1 memo. The probe will look into whether the lawyers were irresponsible in pushing beyond the normal boundaries of advocacy. In a tense meeting last June, Jack Goldsmith, then head of the Justice Department’s Office of Legal Counsel, told Gonzales he was withdrawing the Aug. 1 memo. Goldsmith then resigned—at least partly due to his discomfort about the memo. It was only then that Gonzales decided to distance himself from it. (Goldsmith declined to comment.)
But there is no evidence that Gonzales ever rejected such reasoning before the Abu Ghraib scandal came to light. On the contrary, sources say, he and his staff relied heavily on John Yoo and his legal theories. Most observers still expect Gonzales to be confirmed by the GOP-majority Senate. Yet it’s clear he’ll face some tough questioning first.