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?

Answer the question, please
Answer the question, please

Remember what Dick Cheney said to Sen. Patrick Leahy this past June on the Senate floor? Think of Alberto Gonzales' testimony Thursday before the Senate Judiciary Committee, where Leahy is the ranking Democrat, as the Bush administration's logical follow-up: "And your mother."

By late afternoon, Leahy had become so frustrated with Gonzales' refusal to give clear answers to questions from him and other Democrats that he held aloft a bulky file that he said was filled with unanswered letters and queries addressed to Gonzales, President Bush's nominee for attorney general. "If he's confirmed, I'm sure he'll feel that he never has any duty to answer them," Leahy said. Leahy's file may have been bursting with questions, but for most of Thursday's nearly nine-hour hearing the committee's Democrats wanted an answer to just one question: Does Gonzales think the president has the power to authorize torture by immunizing American personnel from prosecution for it?


During the hearing, Leahy called this idea, which comes from the August 2002 document dubbed the "Bybee memo," "the commander-in-chief override." And by hearing's end it was clear that Gonzales believed in it. (Otherwise, why not simply answer, "No"?) Early in the day, Gonzales professed the requisite faith that America was "a nation of laws and not of men," but his opinion of the president's ability—however limited—to authorize individuals to engage in criminal acts suggests the opposite. This is a government of good men, Gonzales implicitly assured the senators, so there's no need to worry about legal hypotheticals like whether torture is always verboten. Don't worry, because we don't do it. It's a strange argument from a conservative: We're the government. Trust us.

Committee chairman Sen. Arlen Specter kicks off the questioning with a softball. "Do you approve of torture?" he asks, and Gonzales assures him, "Absolutely not." In fact, Abu Ghraib "sickened" him, Gonzales says, and if anything illegal went on at Guantanamo, well, he condemns that, too. But that's the crux of the entire debate: When it comes to torture, what's legal and what's illegal?

Specter realizes this and tells Gonzales, "As chairman, I think further amplification is necessary." But he's sure the rest of the committee will handle that, and they do. Leahy asks Gonzales if he agrees with the definition of torture—"For an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death"—devised by an August 2002 memo that was addressed to him. Gonzales says he doesn't remember. Leahy asks if he agrees today. No, Gonzales says.

Then comes the question of the day: "Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?" Leahy asks. That's "a hypothetical that's never going to occur," Gonzales says, because we don't torture people. He continues, "This president has said we're not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn." Translation: Yes, I think the president has the legal authority to immunize acts of torture, but he doesn't want to, so I'm not going to bother with defending the idea.

Pressed for an answer, Gonzales concedes, "I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional," and therefore the president may ignore it. That's a general statement of principle, Leahy says, but I'm asking a specific question. Can the president immunize torture? Gonzales retreats to the that's-hypothetical-and-it's-not-gonna-happen defense. OK, Leahy says. What about leaders of other countries? Can they immunize torture? I'm not familiar with their laws, Gonzales replies.

Gonzales declares himself agnostic on an astonishing array of issues, including whether torture is a useful interrogation tactic. Sen. Herb Kohl of Wisconsin notes that Ashcroft has said torture doesn't work. What does Gonzales think? "Sir, I don't have a way of reaching a conclusion on that. All I know is that the president has said we're not going to torture under any circumstances."

Sen. Lindsay Graham is the lone Republican to blast Gonzales. His boyish face comes paired with a kindergartner's hyperactivity, as he impatiently rocks his chair while waiting for his turn. During Gonzales' answers to others' questioning, Graham sometimes wears a look of confusion mingled with disgust. "I think we've dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law," Graham, a reserve Air Force JAG officer, says. He adds later, "And I think you weaken yourself as a nation when you try to play cute and become more like your enemy instead of like who you want to be."

Gonzales senses that Graham has made a mistake and seizes on it. "We are nothing like our enemy, Senator," he protests. They behead people, like Danny Pearl and Nick Berg. Graham notes that this is a pretty low moral standard for America to aspire to. I agree that we're nothing like the enemy, he says. "But we're not like who we want to be and who we have been." (During Graham's second round of questioning, Gonzales tells him that government lawyers did the very best they could when they wrote the memo. "Well that's where you and I disagree," Graham retorts. "I think they did a lousy job.")

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?

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.

Chris Suellentrop is the deputy editor for blogs at Yahoo News and a contributing writer for the New York Times Magazine. He has reviewed video games for Slate, Rolling Stone, and NewYorker.com. Follow him on Twitter.



The Ebola Story

How our minds build narratives out of disaster.

The Budget Disaster That Completely Sabotaged the WHO’s Response to Ebola

PowerPoint Is the Worst, and Now It’s the Latest Way to Hack Into Your Computer

The Shooting Tragedies That Forged Canada’s Gun Politics

A Highly Unscientific Ranking of Crazy-Old German Beers


Welcome to 13th Grade!

Some high schools are offering a fifth year. That’s a great idea.


The Actual World

“Mount Thoreau” and the naming of things in the wilderness.

Want Kids to Delay Sex? Let Planned Parenthood Teach Them Sex Ed.

Would You Trust Walmart to Provide Your Health Care? (You Should.)

  News & Politics
Oct. 22 2014 9:42 PM Landslide Landrieu Can the Louisiana Democrat use the powers of incumbency to save herself one more time?
Continuously Operating
Oct. 22 2014 2:38 PM Crack Open an Old One A highly unscientific evaluation of Germany’s oldest breweries.
Gentleman Scholar
Oct. 22 2014 5:54 PM May I Offer to Sharpen My Friends’ Knives? Or would that be rude?
  Double X
The XX Factor
Oct. 22 2014 4:27 PM Three Ways Your Text Messages Change After You Get Married
  Slate Plus
Tv Club
Oct. 22 2014 5:27 PM The Slate Walking Dead Podcast A spoiler-filled discussion of Episodes 1 and 2.
Oct. 22 2014 11:54 PM The Actual World “Mount Thoreau” and the naming of things in the wilderness.
Future Tense
Oct. 22 2014 5:33 PM One More Reason Not to Use PowerPoint: It’s The Gateway for a Serious Windows Vulnerability
  Health & Science
Wild Things
Oct. 22 2014 2:42 PM Orcas, Via Drone, for the First Time Ever
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.