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2004-12-21

Attorney General Nominee Gonzales Advised CIA on "Acceptable" Torture Techniques

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We speak with Newsweek investigative correspondent Michael Isikoff about Alberto Gonzales, President Bush’s nominee for Attorney General, and his role in advising the CIA on how far could the agency go in interrogating suspects. And we examine a secret Justice Department memo from 2001 that claims there are effectively "no limits" on presidential power to wage war. [includes rush transcript]

As the debate over Rumsfeld’s future continues, most politicians on both sides of the aisle predict that Bush will have little difficulty in passing his new cabinet nominees through their Senate confirmation proceedings. But that doesn’t necessarily mean, his nominees won’t face serious questions. One of the most heated hearings could come when Bush’s nominee to replace John Ashcroft as the US Attorney General, Alberto Gonzales, appears in front of the Senate. That is the focus of a story in the latest issue of Newsweek magazine called "Torture’s Path." The lead author of that piece is investigative correspondent Michael Isikoff. In a moment, he will join us on the phone from Colorado. But first, we wanted to play another clip from yesterday’s press conference when Bush was asked about the use of torture in the so-called war on terror.

  • President Bush, news conference, December 20, 2004.
  • Michael Isikoff, investigative correspondent for Newsweek.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: That’s the focus of a story in the latest issue of Newsweek called "Torture’s Path." The lead author on the piece is investigative correspondent Michael Isikoff. In a moment, he’ll join us on the phone from Colorado. But first we wanted to play another clip from Monday’s news conference when President Bush was asked about the use of torture in the so-called war on terror.

GEORGE W. BUSH: We are a nation of laws, and —- and to the extent that people say: 'Well, America has no longer a nation of laws,' that does hurt our reputation. But I think it’s an unfair criticism. As you might remember, our courts have made a ruling. They looked at the jurisdiction—- the right of people in Guantanamo to have habeas review, and so we’re now complying with the court’s decisions. We want to fully vet the court decision, 'cause I believe I have the right to set up military tribunals. And so the law is working to determine what presidential powers are available and what's not available. We’re reviewing the status of the people in Guantanamo on a regular basis. I think two hundred and some-odd have been released. But you gotta understand the dilemma we’re in. These are people that have got scooped up off a battlefield, attempting to kill U.S. troops. And I want to make sure before they’re released that they don’t come back to kill again. And so, it’s — I think it’s — it’s important to let the world know that we fully understand our obligations in a society that honors rule of law to do that. But I also have an obligation to protect the American people, to make sure we understand the nature of the people that we hold, whether or not there’s possible intelligence we can gather from them that we could then use to protect us. And so, we’ll continue to work the issue hard.

AMY GOODMAN: President Bush at his news conference. Michael Isikoff of Newsweek is on the line with us. Your reaction?

MICHAEL ISIKOFF: Well, it’s interesting when the President talks about the commitment to the rule of law. Of course — and then cites these Guantanamo tribunals. Of course, those tribunals are taking place only because the Supreme Court rebuked the Bush administration for its handling of — of the detainees at Guantanamo, not providing them any access to the courts, any right to challenge their detention. That was a policy that was set firmly early on by the White House, a decision the President made based on the recommendations of his White House counsel, Alberto Gonzales, that Geneva Convention protections should not apply to any of the prisoners at Guantanamo, and that the U.S. courts had no jurisdiction over what was taking place at Guantanamo. Those were key legal decisions that were made early on in the Bush administration based on advice from the Justice Department’s Office of Legal Counsel, and that stand was — was shot down by the Supreme Court in its decision last June; and so, as a result, what the President is citing now are things that the administration is doing after being told it was not following the law.

AMY GOODMAN: We’re talking to Michael Isikoff of Newsweek, talking about a 2001 memo revealing the push for broader presidential powers. While you start the piece talking about, there may be some heated discussion around Alberto Gonzales, it doesn’t really sound like that from the Democratic senators. It may well be that military lawyers come forward and challenge Gonzales, but not the senators.

MICHAEL ISIKOFF: Well, we certainly know there’s going to be a lot of very precise questioning or attempts for precision in the hearings to pin Gonzales down on exactly where he stood during all these legal debates that were going on during the administration about what course to take on Guantanamo Bay, on executive powers, on the use of torture. And one of the things we reported, of course, is that Gonzales was very much involved in the discussions that led up to this now controversial August 1, 2002, torture memo that seemed to give sort of unlimited — sort of blank check to the President and everybody on down to handle detainees in whatever way they saw fit, a highly restrictive definition of what torture is. The memo (and this is the memo to Gonzales from the Justice Department’s Office of Legal Counsel) put a definition that was so restrictive, it said that only acts that caused sev — that were specifically intended to cause severe pain and suffering or organ failure would qualify. In other words, anything that was specifically intended for something else but had an incidental purpose of causing severe pain and suffering wouldn’t cut it; and more broadly, and I think more troubling to sort of constitutional scholars, is the assertion that the President, as commander — in-chief, could essentially disregard international treaties and U.S. domestic law governing torture, so long as he was acting under — in what he thought was the defense of the country. Now, it is true Gonzales later walked away from that assertion, and said that it was, 'overly broad, unnecessary, and irrelevant to any of the decisions the President has made,' but it does give quite a window into what the executive powers asserted were.

AMY GOODMAN: Michael Isikoff, can you talk about how you found the memo?

MICHAEL ISIKOFF: Now, which memo are we talking about?

AMY GOODMAN: Can you — Well, talking about the —- You have several memos, but -—

MICHAEL ISIKOFF: Right.

AMY GOODMAN: While you have reported in the past on the 2001 memo, you didn’t have all the details of it until recently.

MICHAEL ISIKOFF: Oh, yes. This is a — This is a new memo that we did report about this week, which is quite interesting, which is sort of an ur or meta memo on — on all these issues, which is a memo written by John Yoo, the very conservative lawyer in the Justice Department’s Office of Counsel, to Gonzales’s office, September 25, 2001, just two weeks after the September 11th attacks which basically said that there were no limits on the President’s ability to respond to the September 11 attacks, and it specifically says in there that the President can wage war preemptively against any countries any — I’m sorry, any terrorist groups or countries that harbor them, regardless of whether or not they had anything to do with the September 11th attacks. This is not a position that the White House ever publicly affirmed during this period, and of course, it does seem to lay a legal groundwork for the invasion of Iraq, just two weeks after the September 11th attacks. And this memo is new. It has not been out before, and I discovered it, quite interestingly, because in preparation for confirmation hearings, the Senate has been asking for as many of these memos as they can get, and any that are not declassified, the White House has a hard time refusing to turn over. So, late last week, they very quietly posted this memo on a website belonging to the Justice Department’s Office of Legal Counsel. You have to go on the memorandums and opinions section of the memo — of — of the website. There’s nothing that tells you it’s there. And then if you happen to click on the year 2001, going back four years, and look under September, this memo miraculously for the first time appears. It was — it’s quite an interesting way to make something public.

AMY GOODMAN: So, explain exactly the significance of this memo.

MICHAEL ISIKOFF: I think it gives — it is the first inkling into where the lawyers of the Bush Administration stood on questions of executive power that were to run through all the issues that were to flow in — in the months and years afterwards relating to all the issues we’re talking about, the basic position is that as commander-in-chief, the President — there are no limits on the President’s power to protect the country. That means that decisions about war can be taken preemptively, without congressional approval, that decisions on handling of detainees, who — and the need to extract information from them can be taken without limits, because of military necessity, and decisions about such matters as the Geneva Conventions can be taken, the President is free to disregard those. So, it all flows from this very expansive view of executive authority that was first laid out in this September 25, 2001, memo.

AMY GOODMAN: Michael Isikoff, I want to thank you very much for joining us. I assume you’ll be covering the Alberto Gonzales confirmation hearings.

MICHAEL ISIKOFF: I will, indeed.

AMY GOODMAN: Thank you.

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