Wow, suddenly current and former administration officials are coming out of the woodwork to talk about Alberto Gonzales’ role in crafting the torture policies of the Bush administration.
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.
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.
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.