Did Al Gonzales say the president can authorize torture?

Politics and policy.
Jan. 6 2005 10:51 PM

Undiplomatic Immunity

Did Al Gonzales say the president can authorize torture?

(Continued from Page 1)

Later, it's Sen. Dick Durbin's turn to try to get Gonzales to elucidate his views on the separation of powers. Can the president immunize people from prosecution for torture? Gonzales restates that it's theoretically possible for Congress to pass an unconstitutional law that the president can justifiably ignore. "Has the president ever invoked that authority?" Durbin asks. No, Gonzales says. When Leahy's turn comes around again, the ranking Democrat complains, "You never answered my question." But Gonzales has answered. Leahy and the Democrats just don't like his answer.

Sen. John Cornyn of Texas, a Republican, comes to Gonzales' defense. President Clinton's solicitor general, Walter Dellinger, wrote in 1994 that the president can refuse to execute laws he considers unconstitutional, Cornyn notes. Sen. Russ Feingold dismisses this during his turn to speak. There's a difference between not enforcing a statute and authorizing people to break the law, he says. Look, Gonzales reiterates, that 2002 memo is no longer administration policy. And on top of that, we don't torture people. But, Feingold asks, does President Bush have the power to authorize violations of criminal law? Gonzales makes some noise about "a presumption of constitutionality" and his oath as attorney general to defend congressional statutes, then gives his real answer: I'd take it very seriously if I ever advised the president to do such a thing. "So the president's above the law?" Feingold asks. No, Gonzales says, but he can choose not to enforce unconstitutional laws. That's not what I'm asking, Feingold complains. We don't torture people, Gonzales says. Feingold gives up and pleads, Will you just let us know instead of waiting two years next time?

Advertisement

Durbin tries to get Gonzales to clarify. Can U.S. personnel, under any circumstances, engage in torture? Gonzales still can't muster a definitive "no." "I don't believe so, but I'd want to get back to you on that," he says. "There are a number of laws that prohibit that."

By day's end, Leahy's frustration drives him to a hilarious tangential inquiry as to how Gonzales vetted Bernie Kerik, President Bush's withdrawn nominee for secretary of homeland security. (Gonzales protests that Kerik wasn't nominated. "It was an announcement of an intent to nominate," he says.) Leahy wants to know whether Gonzales knew about Kerik's so-called "9/11 apartment," or his extramarital affair, or best of all, whether the nanny that he said he didn't pay Social Security taxes for even existed. No one knows her name or what country she comes from, Leahy says. "Do you know whether there ever was a nanny?" Gonzales answers by saying that Kerik is no longer under consideration. "Maybe there was such a nanny," Leahy muses. "I don't know."

Finally, Harold Hongju Koh, a Yale professor of international law (and dean of the Yale Law School), solves the riddle—about the "commander-in-chief override" not the mysterious nanny—by proposing a simple question for Gonzales. He tells the Judiciary Committee, "A simple question you could have asked today was, 'Is the anti-torture statute constitutional?" If Gonzales answers yes, then he does not believe the president can override the statute. Mystery solved. Only one problem with this professorial inquiry: By the time Koh testified, Gonzales was already gone.

TODAY IN SLATE

Politics

Don’t Worry, Obama Isn’t Sending U.S. Troops to Fight ISIS

But the next president might. 

The Extraordinary Amicus Brief That Attempts to Explain the Wu-Tang Clan to the Supreme Court Justices

Amazon Is Officially a Gadget Company. Here Are Its Six New Devices.

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

How Much Should You Loathe NFL Commissioner Roger Goodell?

Here are the facts.

Altered State

The Plight of the Pre-Legalization Marijuana Offender

What should happen to weed users and dealers busted before the stuff was legal?

Surprise! The Women Hired to Fix the NFL Think the NFL Is Just Great.

You Shouldn’t Spank Anyone but Your Consensual Sex Partner

Moneybox
Sept. 17 2014 5:10 PM The Most Awkward Scenario in Which a Man Can Hold a Door for a Woman
  News & Politics
Weigel
Sept. 18 2014 8:58 AM Does this Colorado Poll Show Latino Voters Bailing on the 2014 Election?
  Business
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
  Life
Food
Sept. 18 2014 9:34 AM How to Order Chinese Food First, stop thinking of it as “Chinese food.”
  Double X
The XX Factor
Sept. 17 2014 6:14 PM Today in Gender Gaps: Biking
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
  Arts
Television
Sept. 18 2014 8:53 AM The Other Huxtable Effect Thirty years ago, The Cosby Show gave us one of TV’s great feminists.
  Technology
Future Tense
Sept. 17 2014 9:00 PM Amazon Is Now a Gadget Company
  Health & Science
Bad Astronomy
Sept. 18 2014 7:30 AM Red and Green Ghosts Haunt the Stormy Night
  Sports
Sports Nut
Sept. 17 2014 3:51 PM NFL Jerk Watch: Roger Goodell How much should you loathe the pro football commissioner?