Roberto R. Gonzales lurches toward confirmation as America's Top Cop.

Conservatives ignored facts to defend Gonzales against allegations that memos authorized torture

Conservative pundits have offered false and misleading claims to defend White House Counsel Alberto R. Gonzales, President Bush's nominee for attorney general, asserting that the actions sanctioned in a series of administration memos -- in particular, an August 2002 Justice Department memo requested by Gonzales -- didn't rise to the level of torture.

On the January 4 edition of FOX News' Special Report with Brit Hume, Hume and Roll Call executive editor and FOX News contributor Morton M. Kondracke agreed that the memos didn't authorize torture:

KONDRACKE: What they seem to permit is things that are short of what we would consider torture, where you almost kill somebody or, you know, beat him to within inch of his life or something like that or pull out his teeth or --

HUME: Cause extreme physical pain.

Similarly, a January 6 editorial in the New York Post asserted that "there is no evidence that Gonzales approved of, or encouraged, anything that any reasonable person would consider torture." A January 6 Washington Times op-ed by former Reagan and George H.W. Bush administration Justice Department officials Lee A. Casey and David B. Rivkin Jr. asserted that "suggestions that Judge Gonzales was somehow complicit in the torture of detainees are nothing short of despicable," noting that the definition of "severe pain and suffering" in the memo had been "drawn from another federal statute in which Congress had defined 'severe pain' for purposes of medical reimbursement."

In fact, the August 2002 memo relating to the use of torture, which Gonzales requested from the Justice Department's Office of Legal Counsel, amounts to a brief on the legality of torture. The memo lays out at least three arguments to justify highly abusive interrogation conduct: 1) for the conduct to be prohibited, the pain and suffering must be of an "extreme nature" (further providing that a "certain act may be cruel, inhuman, or degrading, but still not produce pain or suffering of the requisite intensity to fall within [the statute's] proscription against torture"); 2) a defendant violates the law only if he or she intends to inflict severe pain or harm (as opposed to simply knowing that such damage is likely); and 3) even if the acts the administration sought to justify rose to the level of torture, Congress lacks the constitutional authority to prevent the executive branch from carrying them out in a military context.

On the first argument, the Bush administration itself recognized that its definition under the August 2002 memo of conduct egregious enough to constitute torture was problematic. Following the well-documented abuse of prisoners by U.S. military personnel at the Abu Ghraib prison in Iraq and in Guantánamo Bay, Cuba, the Justice Department on December 30 "published a revised and expansive definition ... of acts that constitute torture under domestic and international law, overtly repudiating one of the most criticized policy memorandums drafted during President Bush's first term," according to a December 31 Washington Post article.

On the second argument, the memo noted that the U.S. anti-torture statute (18 U.S.C. 2340-2340A) defines torture as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering" [pp. 2-3]. But in discussing possible legal defenses for civilian or military officials charged under this statute, the memo interpreted "specific intent" very narrowly. The memo explains: "Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent to be convicted" [p. 4]. Under this standard, an interrogator could resort to any act, even one of the severity set out in the anti-torture statute, as long as his or her objective is the extraction of information, rather than the infliction of "severe physical or mental pain or suffering."

Finally, arguing for the president's constitutional authority to order torture in his role as commander in chief, the memo stated: "Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached constitutional power to conduct a military campaign" [p. 31].

Following Kondracke's comments on Special Report, Weekly Standard executive editor Fred Barnes insisted: "This [the August 2002 memo] has nothing to do with Abu Ghraib, though. It didn't have anything to do with it. It's completely unrelated to it." Barnes's claim is tantamount to asserting that although the administration laid the legal groundwork for the extreme abuse that was later doled out at Abu Ghraib, those two events are unrelated.

A January 6 Wall Street Journal editorial similarly argued that charges that the memo "created the climate" for what happened at Abu Ghraib are "absurd" because the memo was "an internal discussion, not a policy directive," and was "about al Qaeda, not Iraq."

But a May 24, 2004, Newsweek article laid out a detailed case for a causal link between the administration's development of a legal framework for detention and interrogation -- partly in the series of memos by Gonzales and others -- and the abuse of detainees at Abu Ghraib. The article noted: "The road to Abu Ghraib began after 9/11, when Washington wrote new rules to fight a new kind of war." It continued:

Indeed, the single most iconic image to come out of the abuse scandal -- that of a hooded man standing naked on a box, arms outspread, with wires dangling from his fingers, toes and penis -- may do a lot to undercut the administration's case that this was the work of a few criminal MPs [military police]. That's because the practice shown in that photo is an arcane torture method known only to veterans of the interrogation trade. "Was that something that [an MP] dreamed up by herself? Think again," says Darius Rejali, an expert on the use of torture by democracies. "That's a standard torture. It's called 'the Vietnam.' But it's not common knowledge. Ordinary American soldiers did this, but someone taught them."

[...]

[A] NEWSWEEK investigation shows that, as a means of pre-empting a repeat of 9/11, Bush, along with Defense Secretary Rumsfeld and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to such methods. ... The Bush administration created a bold legal framework to justify this system of interrogation, according to internal government memos obtained by NEWSWEEK.

— A.S. & G.W.