Stand by your memos.

The law, lawyers, and the court.
Jan. 7 2005 5:33 PM

Stand by Your Memos

Alberto Gonzales' refusal to defend even the defensible.

The problem with Alberto Gonzales' Senate testimony yesterday wasn't that he was a weasel who refused to answer straight questions: Such conduct is de rigueur at confirmation hearings. The problem with his testimony is that it highlights the most toxic aspect of the Bush administration—its willingness to be "brave" only in private.

Consistently throughout yesterday's testimony, Gonzales chose to be irresponsible, forgetful, and unaccountable on issues that warrant serious intellectual scrutiny. There is, for instance, a legitimate legal argument to be made for torturing terrorists—such as al-Qaida operations chief Abu Zubaida—in "ticking time bomb" situations. Even liberal legal scholars such as Alan Dershowitz have been brave enough to make the argument publicly. But Alberto Gonzales was not. There are crucial empirical questions about whether torture even produces reliable information (and if it does not, why even solicit a Bybee memo?).  John Ashcroft was willing to opine on that subject. But yesterday, Gonzales was not. There is a legitimate legal argument to be made about the applicability of the Geneva conventions to stateless terrorists who wear no uniforms. Gonzales was brave enough to make it in his draft memo of January 2002. But he barely had the stomach to stand behind it yesterday—suggesting that it might be "appropriate to revisit" the conventions—the way you might revisit your choice of wedding florist. There is also a theoretical argument to be made that the president can unilaterally disregard what he deems unconstitutional statutes. As noted yesterday, Clinton's acting Solicitor General Walter Dellinger made that argument in 1994. But Gonzales was barely brave enough to concede it in a hypothetical—insisting over and over that the issue would never arise since the president just doesn't believe in torturing people.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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Why is a man so unabashedly willing to "lean forward" on the boundaries of the law in the plushy comfort of his White House conference room, willing to be blown back into near-limbo position when it comes to articulating his legal views in public? Why was he unable to either disavow the extreme positions he's taken in the past or stand up and seriously defend them?

One of Gonzales' most plausible defenses of the "torture memos" is that they represent mere hypothetical speculation—a handful among many radical ideas that were batted around in a broad attempt to arrive at a national policy. On its face, this argument makes sense. No one should be judged on the contents of a single policy memo, devoid of context, prepared at the request of another. We've all written stupid arguments. But one of the tragic flaws in the Bush administration's fantasy "information-gathering" sessions is that the only ideas that get "batted around" come from an echo chamber of lock-jawed evangelists for unlimited executive powers. As the Washington Post pointed out again this week, key administration, State Department, and military officials were routinely precluded from batting around their ideas about wartime exigencies and presidential powers. This wasn't legal theorizing; it was a Federalist Society pep rally.

Moreover, if Gonzales really wanted the Judiciary Committee to evaluate his legal ideas in context, he certainly could have complied with Sen. Patrick Leahy's numerous requests that he disclose all the memos and not just those leaked to the press.

As Gonzales at least hinted in his opening statement yesterday, and later suggested in a response to Sen. Ted Kennedy, there may well be a need to rethink the definition of torture—and a need to reconsider its utility in very limited situations, where it is simply more important to gather information than respect the bodily integrity of a deranged terrorist. And had he stepped up to the plate yesterday and said, "I, personally, am for gouging out Abu Zubaida's left eye if I knew he could tell me where Osama Bin Laden is planning his next attack on U.S. soil," I bet he'd have won himself a standing ovation. Heck, I'd hand him the shrimp fork to do it. But instead Gonzales skirted the issue of what even constitutes torture (the real sticky wicket of the Bybee memo) and asserted, ad nauseum, that neither he nor the president believes in it. Whatever it is.

Similarly, Gonzales sidestepped any personal accountability for the dozens of reported torture incidents at Abu Ghraib, on the battlefield, and at Guantanamo. Unwilling to even speculate as to whether the acts at Abu Ghraib were criminal, and unable to articulate the simple principle that information-gathering must, in his view, take precedence over human rights in the war on terror, Gonzales muttered platitudes about holding the torturers to account. All the while refusing to concede that his own efforts to reshape the national law on torture and enemy detainment created a climate of legal ambiguity that necessarily impacted interrogations of U.S. prisoners around the world.

"I wrote it because I believe in it and I'd do it again if I could." How hard would that have been?

The Bush administration's party line on every smudge and tear it has inflicted upon the Constitution has been: "Trust us—we know what we're doing." But it's hard to trust a government that either won't disclose what it's doing or denies what we know it to be doing behind closed doors. From the Patriot Act, to its treatment of aliens, to its indefinite detainment of citizens, and the sham of its military tribunals, we have been advised at every turn that the administration has only the national interest at heart. And even that argument might have been defensible were the government honest about what it deemed our best interests to be. Many, if not most, Americans were once willing to trust the Bush administration to protect them in wartime. But when government officials cannot publicly stand behind the extreme positions they have staked out in private; when they espouse one view in secret and irreconcilable politically correct versions before the cameras; when not a single individual is ever held to account for genuine government screw ups—such as those at Guantanamo and Abu Ghraib—one is left only to wonder which individuals and ideas we were meant to trust in the first place.