January 06, 2005, 7:41 a.m.
Going after Gonzales
Are Republicans prepared for the attack?

EDITOR'S NOTE:Today, Byron York returns from a four-month leave from NRO. He is finishing a book, The Vast Left Wing Conspiracy, which will look inside — using previously unreported information — the liberal political movement that changed the way presidential campaigns are run: MoveOn.org, George Soros, 527 groups, Fahrenheit 9/11, Air America radio, and more. The book is scheduled to be published in April by Crown Forum.

After an initial period of confidence, Republicans on Capitol Hill have become increasingly nervous about the prospects for White House Counsel Alberto Gonzales at today's Senate Judiciary Committee hearing on his nomination to be attorney general.

"I think I would move it from the category of clearly going to be confirmed to probably be confirmed," one well-connected Republican says. "There is enough chatter and passion out there that it's hard to read."

While a number of committee Democrats clearly plan to hit Gonzales hard, Democrats have kept close counsel on whether they actually intend to try to sink the nomination, or whether they will, after making a certain amount of noise, ultimately acquiesce in Senate confirmation. What has Republicans newly concerned is that the "chatter" — mainly about minority plans to oppose Gonzales on the issue of his role in determining the treatment of U.S. detainees in the war on terror — suggests a serious effort. "People are going crazy now," the Republican says. "All these letters, People for the American Way, the former military commanders writing in. There's a lot of energy, and it's energy that is typically associated with an effort to kill a nominee."

Gonzales, and the White House, appear prepared to defend the administration's reading of the Geneva Convention and the argument that parts of the treaty do not apply to the war on terror. In a statement prepared for today's hearing, Gonzales says, "After the attacks of 9/11, our government had fundamental decisions to make concerning how to apply treaties and U.S. law to an enemy that does not wear a uniform, owes no allegiance to any country, is not a party to any treaties and — most importantly — does not fight according to the laws of war."

More troublesome will be questions about Gonzales's role in the so-called "torture memo" controversy, in which Justice Department lawyers, reporting to Gonzales, explored the internationally accepted definition of torture and how it applied to detainees in the war on terror. In recent days, Republicans have come to believe that Democrats will likely recite a list of abusive prisoner-treatment techniques and then ask Gonzales whether each one constitutes torture. "There could be some horrible cross-examinations," another GOP source says. "Like, 'So, if you attach battery cables to a person, is that torture?' You can go through a whole series of questions." As of Wednesday, the White House was said to have been engaging in last-minute preparations for that line of questioning.

In any event, Gonzales will be grilled about his views on the definition of torture. While the memos at the heart of the controversy will be cited repeatedly, what is less likely is that senators will examine the careful reasoning on which the memos were based — and the role of the Senate itself in providing guidance for the administration officials who examined the torture issue. Last summer, a former administration official who was intimately involved in the process spoke to National Review, discussing the painstaking process by which administration lawyers studied the question. On July 12, 2004, NR reported:

The Justice Department assembled a sizable team of lawyers. They began by examining the major international treaty on the issue, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was written in the 1980s and ratified by the U.S. Senate in 1994. They also studied the act of Congress, usually referred to as Section 2340, which implemented the treaty in U.S. law.

"We looked at the treaty, the implementing statute, the negotiating history of the treaty, the U.S. ratification record, the discussions between the Senate and the president about the treaty, the cases from the U.S. and abroad involving torture, other statutes involving torture, commentary, law-review articles, and books," says one former administration official involved in terrorism issues. "This was probably the most comprehensive examination of this question there has ever been in American law."

The key question for the Justice Department lawyers was: What is torture? Although some critics have suggested the administration came up with a new definition to allow for abusive interrogations, in fact the legal team decided to adopt the definition contained in both the Convention Against Torture and Congress's Section 2340. The treaty, which was approved by more than 70 nations around the world, defined torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Section 2340 contained similar language, defining 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 . . . upon another person within his custody or physical control."

Both the treaty and the law used the word "severe." The Justice Department study noted that the treaty carefully "distinguishes between torture and other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture . . ." In addition, the lawyers found, the treaty required criminal penalties only for acts of torture, not for anything else. Likewise, Section 2340, according to the administration analysis, "makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture."

As administration lawyers studied the congressional debate over the act, they discovered that such language was chosen after lengthy consideration. "One thing that both senators and administration witnesses made clear was that . . . torture was defined in a very specific way," says the former administration official. "[The act] defines torture, and then it defines cruel, inhuman, and degrading acts." The two, though both undesirable, were different things.

Everything in the Justice Department's 50-page memo — and the controversy it created — flowed from that distinction. Administration lawyers concluded that some types of treatment of prisoners, while perhaps not acceptable either to the administration or to the American public, might nonetheless be legally defensible under both international and American law. The memo did not condone torture. Nor, for that matter, did it condone cruel, inhuman, or degrading treatment. It just examined the law.

Republicans expect fierce opposition from Democratic senators Edward Kennedy, Patrick Leahy, Richard Durbin, and others. They are less worried about one of the administration's perennial Democratic antagonists on the Judiciary Committee, New York Sen. Charles Schumer, who has led the opposition to the president's judicial nominees but often supported the White House on the war on terror. "Schumer has this little problem," says one Republican. "He's actually defended torture."

That was a reference to a hearing in June 2004 in which Judiciary Committee senators closely questioned Attorney General John Ashcroft on the torture question. "I'd like to interject a note of balance here," Schumer said. "There are times when we all get in high dudgeon. We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake."

"Take the hypothetical," Schumer continued. "If we knew that there was a nuclear bomb hidden in an American city and we believed that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say, 'Do what you have to do.'"

"So it's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal.

And I respect — I think we all respect the fact that the president's in the foxhole every day. So he can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows and when the law allows it and what there is permission to do."

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