Torture's Path

The paper trail is long, and it isn't pretty. But it's sure to produce some tough Senate questions for Alberto Gonzales

(left) Bagged, tied and arrested: An Iraqi arrested around the time of an attack on U.S. soldiers in 2003

The CIA had a question for the top lawyers in the Bush administration: how far could the agency go in interrogating terror suspects—in particular, Abu Zubaydah, the close-mouthed Qaeda lieutenant who was resisting standard methods? So in July of 2002 the president's chief counsel, Alberto Gonzales, convened his colleagues in his cozy, wood-paneled White House office. One by one, the lawyers went over five or six pressure techniques proposed by the CIA. One such technique, a participant recalls, was "waterboarding" (making a suspect think he might drown). Another, mock burial, was nixed as too harsh. A third, the open-handed slapping of suspects, drew much discussion. The idea was "just to shock someone with the physical impact," one lawyer explained, with "little chance of bone damage or tissue damage." Gonzales and the lawyers also discussed in great detail how to legally justify such methods.

Among those at that first White House meeting was Justice Department lawyer John Yoo, who sat on a couch along the wall. And partly out of the discussions in Gonzales's office came the most notorious legal document to emerge from last spring's Abu Ghraib interrogation scandal. This was an Aug. 1, 2002, memo—drafted by Yoo, signed by Assistant Attorney General Jay Bybee and addressed to Gonzales—which provoked outrage among human-rights advocates by narrowly defining torture. The memo concluded, among other things, that only severe pain or permanent damage that was "specifically intended" constituted torture. Mere "cruel, inhuman or degrading" treatment did not qualify.

At the White House meeting, Gonzales was concerned about observing the law, the participant recalls. "We didn't want to go over the line," he says. But Gonzales's worry was: "Are we forward-leaning enough on this?" "That's a phrase I heard Gonzales use many times," recalls this lawyer. "Lean forward" had become a catchphrase for the administration's offensive approach to the war on terror. "And the second part of that statement was always, 'Prevent an attack, save lives.' If Gonzales had any role in this, it was to be the fair arbiter of 'Are we doing enough?'"

Such aggressiveness after 9/11 was typical for Alberto Gonzales, the soft-spoken Harvard Law graduate who has been George W. Bush's lawyer since the latter's days in the Texas governor's mansion. Gonzales's legal and ethical advice will be the focus of confirmation hearings next month on his nomination as Bush's second-term attorney general. In the first months after 9/11, Gonzales helped to craft some of the most momentous and controversial decisions of Bush's presidency. Among them: to create military commissions for the trials of terrorists, to designate U.S. citizens as "enemy combatants" and to disregard the Geneva Conventions in the treatment of prisoners at Guantanamo Bay. But until now he has steered clear of the spotlight. "He's kind of an enigma," says one lawyer who worked with him. "His defining characteristic is loyalty to the president."

Yet memos reviewed by NEWSWEEK and interviews with key principals show that Gonzales's advice to the president reflected the bold views laid out in the Aug. 1 memo and other documents. 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." In response, a senior White House official says Gonzales's memo was only a "draft" and just one part of an extensive decision-making process in which all views were aired.

A Justice Department lawyer may have been laying the groundwork for the Iraq invasion long before it was discussed publicly by the White House

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.

By Michael Isikoff, Daniel Klaidman and Michael Hirsh
Dec. 27 / Jan. 3 issue © 2004 Newsweek, Inc.