In the days leading up to the confirmation hearings for White House Counsel Alberto R. Gonzales's nomination for attorney general, former Republican administration officials defended Gonzales in media appearances, attempting to distance him from a controversial government memo pertaining to the use of torture in the interrogation of suspected terrorists.
Douglas W. Kmiec, former head of the Office of Legal Counsel in the Reagan and George H.W. Bush administrations; Theodore Olson, former George W. Bush administration solicitor general; and Bradford Berenson, former George W. Bush administration associate White House counsel, have all emphasized that the Justice Department issued the August 1, 2002, memo, not Gonzales. The three downplayed Gonzales's link to the memo by claiming he was merely seeking legal advice about the permissible scope of interrogation techniques. But news reports indicate that after requesting the memo, Gonzales then aggressively endorsed and implemented its conclusions and recommendations, as reflected in his advice to President George W. Bush.
During the January 5 edition of MSNBC's Hardball, Olson dismissed the suggestion that Gonzales could be implicated in the memo: "One of these so-called indicting things is that he [Gonzales] asked the Justice Department for a legal provision, for a legal analysis of one of the statutes involved." On the January 5 edition of FOX News' Special Report with Brit Hume, Berenson said of Gonzales's role in the memo: "[I]t's not fair to hold against the person who asks the question the answer that he receives." And in a January 6 Wall Street Journal commentary, Kmiec credited (login required) Gonzales with the Justice Department's ultimate rejection of the memo:
Even before confirmation, Mr. Gonzales has demonstrated that no presidential or personal friendship will oblige him to persist in the errors of others. He deserves substantial credit for returning the whole torture memo matter to the Department of Justice for rethinking. It is the hallmark of a wise counselor who has the courage -- even in the face of national embarrassment -- to see error, and to correct it in a fashion that does not undermine the necessary authority of the president to engage in the humane interrogation of those captured in the war on terror.
But the suggestion that Gonzales recognized the problem and took the initiative in "returning the whole torture memo to the Department of Justice for rethinking" is misleading. On December 27, 2004, Newsweek reported that Gonzales distanced himself from the memo only after "Jack Goldsmith, then head of the Justice Department's Office of Legal Counsel, told Gonzales he was withdrawing the Aug. 1  memo" and subsequently resigned. According to a Washington Post article, Gonzales -- responding to "pressure from Congress and outrage around the world" -- described the memo as "controversial" and "subject to misinterpretation." But his comments did not come until June 22 -- several weeks after the Post first made the memo public. And it was not until December 30, 2004, more than two years after the memo was delivered, that the Justice Department issued a revised version.
While Gonzales did not write the memo, neither Hardball host Chris Matthews nor Special Report host Brit Hume mentioned evidence that he sought the memo, endorsed it, and implemented its conclusions. Newsweek reported that Gonzales "convened" a July 2002 meeting in his White House office to discuss how far the CIA could go in interrogating detainees, noting that the Justice Department memo came "partly out of the discussions." Newsweek quoted an unidentified lawyer who had attended the meeting as saying Gonzales pushed for the most aggressive interrogation techniques possible, repeatedly asking, "Are we forward-leaning enough on this?" In a January 5, 2005, article, The Washington Post similarly noted that it was Gonzales's wish to be "forward-leaning" "throughout this period" that interrogation conduct was being discussed.
Further, Newsweek reported that once the Justice Department issued the memo, Gonzales took the ruling directly to President George W. Bush: "memos reviewed by NEWSWEEK and interviews with key principals show that Gonzales's advice to the president reflected the bold views laid out in the Aug. 1 memo."
And in his January 6 testimony before the Senate Judiciary Committee, Gonzales indicated that he may still support what could be the key tenet of the Justice Department memo. As Media Matters for America has noted, the memo took the position that even if the acts the administration sought to justify violated U.S. law against torture, that law "would be unconstitutional if it impermissibly encroached constitutional power to conduct a military campaign."
While The Washington Post reported on December 31, 2004 that the revised December 30, 2004, memo "pointedly sidesteps" the contentious issue of executive power, Gonzales addressed the issue more directly. According to a January 7 article in The New York Times, when Senate Democrats "pressed Mr. Gonzales to say whether he agreed with another controversial finding in the memorandum regarding the president's power to effectively ignore a Congressional ban on torture if he found it to be unconstitutional," Gonzales replied, "I guess I would have to say that hypothetically that authority may exist." Also January 7, The Washington Post reported that when the Judiciary Committee members asked Gonzales whether "a president had the power to authorize torture in unusual circumstances," the nominee responded: "I would have to know what ... is the national interest that the president may have to consider."