Gonzales Torture Memo

Google is sending folks to a post on this site that doesn't quite cover the question of Gonzales' involvement in the torture memos. So I've pulled information from my blog (all in the Torture Inc. category) together into this post for those inquiring minds who are googling my way. Links to source documents, including many of the memos, can be found on the right hand navigation bar. Now, on to the topic at hand.

For those looking for the big picture, check out this timeline on the torture memos and related events. (UPDATE: For opinions on the Gonzales nomination, visit this post and the comment thread at Political Animal.) For information specific to Alberto Gonzales, keep reading.

During the height of the outrage over the discovery of the 'torture memos', Albert Gonzales said that the memos were "unnecessary, over-broad discussions" and "not relied upon" by policymakers". The Senate Armed Services Committee did not treat the memos as though they were simply written discussions and Gonzales' perspective was not widely adopted. 

Alberto Gonzales authored only one of the leaked memos (you can read it here but be warned that the quality is poor). Dated January 25, 2002, the memo to the President addressed the applicability of the Geneva Conventions to captured al Qaida and Taliban fighters. Gonzales endorsed a DOJ opinion that Bush should adopt a policy that the Geneva Conventions didn't apply to the Taliban and al Qaeda and specifically counters State Dept. disagreements with the  DOJ opinion.

It's informative to read Colin Powell's memo challenging the administration's decision. You can find it here. Of particular interest is the attached critique of the accuracy of contents of the Gonzales memo and the implication that information is presented to bias the president in favor of negating the Geneva Conventions. The State Dept's position is that the advantages of applying the Geneva Conventions outweighs the advantages of not applying them.

In addition to writing the memo discussed above, Gonzales received a number of the torture memos.

2002 01/22 DOJ Memo to White House Gonzales and DOD Haynes
Provides legal basis for not applying the Geneva Conventions in Afghanistan. Presents DOJ opinion cited by Gonzales in 1/25 memo. Cited by Bush in his directive on detainee treatment.

2002 02/02 State Dept Memo to White House: This is a memo from the State Department's legal advisor, William Taft, to the White House counsel, Alberto Gonzales. Taft warns that rejecting the applicability of the Geneva Conventions creates several problems, including the elimination of protection for our troops in the event that they are captures. The memo includes an attachment that shows the broad support among administration lawyers for declaring the Geneva Conventions inapplicable to Taliban and al Qaeda detainees. It also cites a CIA request for an explicit statement that the commitment to the spirit of the Geneva Conventions didn't apply to its operatives.

2002 08/01 DOJ Bybee memo to Gonzales. Written in response to a request by Gonzalez for DOJ to review the application of international and federal law to interrogations occurring outside the United States. A summary of this controversial memo is below. For a detailed analysis, visit this discourse.net post by Dan Froomkin.

Summary: The five part, 50 page memo concludes that acts inflicting and specifically intended to inflict severe pain or suffering, mental or physical, must be of an extreme nature to rise to the level of torture. It also concludes that cruel, inhuman, or degrading acts may not produce the necessary pain or suffering to qualify as torture. The memo concludes by outlining defenses to claims that the law against torture was broken including Commander-in-Chief authority, necessity, and self-defense. This memo in effect provided a rationale for using torture and provided narrow and complicated definitions of torture in order to avoid the possibility of being charged with breaking laws prohibiting torture. The memo says that torturing terrorists abroad “may be justified” and that international laws prohibiting that torture might be unconstitutional in reference to torture occurring during the interrogation of suspected terrorists. The memo was used as a source of legal guidance for the CIA. The White House has referred to this memo as a historic or scholarly review of laws and conventions concerning torture and not a document designed to provide advice on specific methods or techniques.

I'll update this if and when new information comes to light.

UPDATE: If you're still hungry for more, Washington Monthly has a hefty article on the detainee treatment at Abu Ghraib and the torture memos. 

UPDATE II: Just realized I've been frequently misspelling Gonzales' name (spelled it Gonzalez - with a z instead of an s- apologies).

UPDATE III: The Washington Post has published a couple of editorials critical of Gonzales and pushing for the confirmation hearing to cover specific areas. This editorial focuses on Gonzales' performance in providing a legal review of clemency requests for Bush when he was governor. This editorial focuses on Gonzales' torture memo and his role in the policy that the Geneva Conventions didn't apply to detainees from the war in Afghanistan.

Comments

[Mick]

You might add that Gonzalez cut his legal teeth as corporate counsel for--Ta-Da!--Enron, who else. This guy's a scumbag from every angle. The problem is, he isn't inept like Ashcroft, and his appontment means things are going to get even nastier than if Johnny was still bumbling around blind. There's a line in Silverado about the local ranching tycoon. After noting that the now-deceased father was a nasty piece of work, the local lawyer concludes:

In some ways, the son is worse than his old man was. He's smoother. You don't always hear him coming.

Word to the wise.

[Gale]

i probably shouldn't type here the string of curse words flying through my head.

I really fear for our future.

[Douglas Hill]

Welcome to the real world.

You can choose to have effective intelligence gathering apparatus, or not. It is certainly prudent to secure legal opinions concerning just how far you can go. To sit in the warmth of your protected home and dicuss over wine how barbaric are the people who are trying to take on the responsibility of securing your liberty and safety is a pathetic, girlie-man cop out. Thank God it isn't you being called to put your ass on the line and make the the tough decisions.

[Kathy]

So the real world is one in which torture is American policy? Where the President is above the law? Where the only way we can defend ourselves is by so fundamentally compromising ourselves that we lose ourselves in the process?

In no way at any time have I said that our soldiers are barbaric. Torture is. Our leaders should not be asking our service men and wome to torture people, to act immorally in our name - particularly when experts say that torture is an unreliable method for gaining reliable intelligence.

Just because I'm sitting warm in my home does not preclude me from having an opinion. My dismay at the adminsitration's fondness for legalizing torture does not equate to calling our military or intelligence operatives barbaric. There's no cop out here. The hard decision is to take the moral and principled road and to just say no to torture. You think there's universal support in the military for this policy? You think Colin Powell is taking the "pathetic, girlie man cop out"? He's protecting our troops by opposing this policy. And I'd say he's got more credibility than you or I will ever have.

I get furious when those who preach at me about the sanctity of life, the immorality of the left, and the righteousness of the Republicans actually criticize me for taking a principled stand against torture. The inconsistency is amazing. Truly amazing.

[Mike]

Hey Douglas, how's it going? Just wondering, are you in or have you ever been in Iraq? Let me assure you, I was discussing the very issue of how the prisoners were treated the other day right before our FOB in Mosul got hit with mortars and two people were killed. You know what is even easier than armchair criticism? Armchair praise.

Let me put this bluntly, the vast majority of us in the military think that the abuses at Abu Ghraib and elsewhere are not a good thing. You do not get effective information by using torture, plain and simple. This was not a "tough decision" this was sadism and it had its roots in Gonzales's memo.

Do you know what Colin Powell's reaction to the memo was? From Newsweek Magazine:

When Powell read the Gonzales memo, he "hit the roof," says a State source. Desperately seeking to change Bush's mind, Powell fired off his own blistering response the next day, Jan. 26, and sought an immediate meeting with the president. The proposed anti-Geneva Convention declaration, he warned, "will reverse over a century of U.S. policy and practice" and have "a high cost in terms of negative international reaction."

You simply cannot sit back and expect that everything that everyone in the military does is the right thing simply because they're in the military. The abuses at Abu Ghraib did not do anything to preserve our liberty or our freedom and they most certainly did not make us safer from terrorism. Military members must be held accountable for their actions even if they are taking those actions in a time of war. Your post comes off as desperate and reaching (particularly the all too hilarious "girly men"). You try to dismiss people out of hand because they haven't been in the military.

Well pal, I'm in the military and I'm over in Iraq. How about you?

[Douglas Hill]

Mike,

I'm not talking about the juvenile Abu Ghraib antics. Have you ever considered why our intelligence gathering is a sham, as compared to say, Israel's?

Regrettably, Mike, I'm too old to be over there with you, or I would be. I am sitting here in my armchair, sipping my wine, wishing I were a young man again.

You have certainly earned your right to your opinion. But so have I. Good luck to you.

[John M. Burt]

When U.S. Embassy staff were being held hostage in Tehran, I got into a surprising number of arguments with leftists who wanted to defend the conservative faith-based government of Iran. They generally boiled down to something like this:

Me: Holding people hostage is a crime. Sooner or later we have to say, "Okay, Khomeinei, release your hostages and come out with your hands up, or we'll come in firing."
He: They're not hostages, they're spies!
Me: In that case, the "student activists" should perform a citizens' arrest, hand the alleged spies over to the police, and let them be charged with espionage or else released.

Same deal with the "enemy combatants": either they're prisoners of war, in which case the Geneva protocols apply to them, or else they are suspects in a criminal investigation, in which case Federal criminal law (and the Bill of Rights) applies. Inventing a new category out of thin air is simply not on.

[Kathy]

That's one of the more insightful views I've seen on this issue. The analogy holds.

As for the arguments you got from leftists back then, consider me embarrassed that they were on my side of the political aisle.

[Cecil Turner]

"Same deal with the "enemy combatants": either they're prisoners of war, in which case the Geneva protocols apply to them, or else they are suspects in a criminal investigation, in which case Federal criminal law (and the Bill of Rights) applies. Inventing a new category out of thin air is simply not on."

Sorry, but that is a historically challenged position, as the category is more than a century old. The distinction between armed prowlers and legitimate combatants was formalized (in US custom) by the Lieber Code in 1863 (esp. articles 82&84), which appears to recap the then accepted laws of war. Applying the term "unlawful" to a combatant is at least 50 years old, as laid out in Ex Parte Quirin:

"The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

Note the "military tribunal" part . . . this has little to do with federal criminal law, and the due process provisions of the Bill of Rights do not apply. Similarly, the Geneva Conventions have specific requirements for POW status, and Al Qaeda operatives clearly don't meet them.

[John]

Mike,

Thank God for rational men like you who serve our country and recognize right from wrong.

Douglas Hill,

I'm curious about this statement:

"You have certainly earned your right to your opinion. But so have I. Good luck to you."

Please point out the place in the American constitution where an American citizen must earn the right to an opinion.

In any event, you certainly are entitled to your opinion, and if military service is a prerequisite for being able to express an opinion, then perhaps you would be eager to read the opinion of one of the greatest American war heroes who ever lived? Does the name Marine Corps Major General Smedley Darlington Butler ring a bell? Awarded 2, yes that is right 2 Medal of Honors. Here is a direct quote from him regarding US Foreign Policy:

"I spent 33 years and four months in active military service and during that period I spent most of my time as a high class muscle man for Big Business, for Wall Street and the bankers. In short, I was a racketeer, a gangster for capitalism. I helped make Mexico and especially Tampico safe for American oil interests in 1914. I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in. I helped in the raping of half a dozen Central American republics for the benefit of Wall Street. I helped purify Nicaragua for the International Banking House of Brown Brothers in 1902–1912. I brought light to the Dominican Republic for the American sugar interests in 1916. I helped make Honduras right for the American fruit companies in 1903. In China in 1927 I helped see to it that Standard Oil went on its way unmolested."

Isn't it interesting that General Butler could be speaking about today? Just change the company names around a little. Maybe a country name or two.

[Vergniaud]

Cecil Turner,

Quirin is a piece of Contitutional dung, IMHO, but more importantly, it applies to spys, not terrorists. For instance, under the pre-Revolutionary customs cited in Quirin, a saboteur who gets back to his own lines cannot be tried later even if his side loses the war. Do you realy want to accord such immunity to mass murderes like Osamma? Not me. I say, try him in a real court like free people do. Then punish him according to the law.

Douglas Hill,

Being free requires a couple of things above all: courage and a committment to the rule of law. Some people don't have the guts for it, though.

Torture is for desperate cowards. Isn't that what we always said when it was done to us by the Viet Cong, the Japanese, the Russians, etc? They were "barbaric" and we weren't.

I don't think the problem with our intelligence agencies is due to a lack of doing enough torture. You do.

Iraq is a test case, isn't it? Lots of torture in Abu Graib. Result: Crappy, useless intelligence.

Your response is, I suppose, they needed to use even more torture.

[JohnQDoe]

Just curious. Albert Gonzalez pushed for a "national" registry of sex offenders. People have been suggesting that if this can happen to one group of what has become a subclass of human beings, then it can happen to the rest of us. What do you think?

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