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Torture by U.S. Personnel Illegal, Gonzales Tells Senate

By Dan Eggen and Charles Babington
Washington Post Staff Writers
Wednesday, January 19, 2005; Page A04

Attorney general nominee Alberto R. Gonzales, responding to questions about his role in setting controversial detention policies, told members of the Senate Judiciary Committee that any form of torture by U.S. personnel is illegal, according to new documents released yesterday.

But Gonzales, the White House counsel who is expected to be confirmed by the Senate in coming weeks, declined to identify the techniques allowed under U.S. interrogation policies, citing restrictions on classified information. He also reiterated his view that a president could theoretically decide that a U.S. law -- such as the prohibition against torture -- is unconstitutional, though he dismissed the question as irrelevant under President Bush.

Alberto R. Gonzales clarified to senators some of his testimony. (Dennis Brack -- Bloomberg News)

_____Gonzales Hearings_____
Video: Attorney General nominee Alberto Gonzales drew scorching criticism from Senate Democrats during his nomination hearing.
Text: Gonzales Testimony
_____Key Documents_____
Gonzales Torture Memo to President Bush (Jan. 25, 2002, PDF)
Dept. of Justice Memo on Torture to Gonzales (Jan. 22, 2002; PDF)
Dept. of Justic Memo on Torture to Gonzales (Aug. 1. 2002; PDF)
Gonzales Letter to 9/11 Commission (PDF)

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"The president has consistently stated that the United States will not use torture in any circumstances, so it is simply implausible that I would ever be called upon to address whether the president's constitutional authority as commander-in-chief would permit him to, in effect, nullify the torture statute for national security reasons," Gonzales wrote in one response. He added later: "I would approach such a question with a great deal of care."

In more than 200 pages of responses to questions from Democratic and Republican lawmakers, Gonzales also said that U.S. laws and the Constitution might not forbid interrogation techniques overseas that would be considered "cruel and inhuman" in the United States. He said, however, that the Bush administration has banned such treatment.

The answers did little to mollify some Democratic critics of Gonzales's role in drafting the administration's torture and detention policies, which have come under steady attack amid revelations of alleged prisoner abuse at U.S. military facilities in Iraq, Afghanistan and Guantanamo Bay, Cuba. The detention policies dominated the discussion at Gonzales's confirmation hearing Jan. 6, and some senators asked for the additional information that he provided in writing.

Sen. Patrick J. Leahy (Vt.), the Judiciary Committee's ranking Democrat, said Gonzales's refusal to reply to many of the panel's questions on interrogation policies amounted to a "pattern of stonewalling and non-cooperation."

"This was another missed opportunity for straight answers and accountability," Leahy said in a statement. ". . . Judge Gonzales gives the impression that he feels that he does not have to substantively answer questions before his confirmation, even though he wants to be Attorney General of the United States."

On other issues, Gonzales said he will push for renewal of the controversial USA Patriot Act anti-terrorism law this year, and said he will support reinstating the federal ban on assault weapons, which Congress allowed to expire in September.

The GOP-controlled Senate appears certain to confirm Gonzales to succeed Attorney General John D. Ashcroft this month or in early February, according to Democratic and Republican lawmakers. But some Democratic senators are nonetheless raising questions and building a paper trail on Gonzales, hoping to prevent the former Texas judge and longtime Bush confidant from ever being named to the U.S. Supreme Court.

Several senators said Bush is unlikely to nominate Gonzales if Chief Justice William H. Rehnquist, who is 80 and battling cancer, were to step down this year. But these senators said that with several justices in their seventies or eighties, Bush could have additional vacancies to fill during his second term and might turn to his longtime Texas friend.

Should that happen, Democrats said, some senators who may vote in favor of Gonzales as attorney general will not hesitate to vote against his lifetime appointment to the highest court if they believe his record, philosophy and temperament do not warrant it.

"I assume he'll get every Republican vote" plus an unknown number of Democratic senators' votes for confirmation as attorney general, Sen. Charles E. Schumer (D-N.Y.) said in an interview.

But Schumer said there is "no question" that he and other Democrats might try to use the same questions and answers as part of an argument to stop Gonzales if he is tapped for the Supreme Court, which they say demands higher standards than a Cabinet appointment.

Of the Judiciary Committee's eight Democrats, only Sen. Edward M. Kennedy (Mass.) has publicly signaled how he might vote on Gonzales's nomination. He said Sunday he is "leaning against" confirmation, largely because the nominee said he had forgotten or did not know about many important questions of administration policy.

Other committee Democrats have raised objections, but have not said they will vote against Gonzales. "I was disappointed in the testimony that I heard," Sen. Dianne Feinstein (Calif.) said in a statement earlier this month.

At Gonzales's Jan. 6 confirmation hearing, for example, senators pressed him to explain the origins of an August 2002 Justice Department memo that gave a narrow definition of torture in outlining the techniques U.S. interrogators might use on terrorism suspects. Gonzales said he did not recall "whether or not I was in agreement with all of the analysis," a response that exasperated several senators.

In the responses released yesterday, Gonzales said he "accepted the final memorandum as representing the considered views of the Department of Justice." In other responses, Gonzales referred to a new Justice memorandum, released Dec. 30, that repudiated the earlier analysis and broadened the government's definition of unlawful torture.

Some of Gonzales's responses appeared aimed at clarifying points that remained murky during his testimony. He had told Sen. Richard J. Durbin (D-Ill.) that he needed to research whether there were any circumstances in which U.S. personnel could legally engage in torture; Gonzales answered "no" in writing. He also wrote that other nations would be barred from torturing Americans under international agreements. During the hearing, he had said he was not sure.

But Gonzales also reiterated his defense of some of his most controversial decisions, including the conclusion in January 2002 that suspected Taliban soldiers and al Qaeda members captured in Afghanistan were not entitled to prisoner of war status under the Geneva Conventions. Human rights advocates and some Democrats have alleged that the decision was a misreading of international law and helped set the stage for prisoner abuse scandals.

Gonzales also provided a rare acknowledgment of the secretive practice of "rendition," in which the United States turns over suspected terrorists to other nations for questioning. In one case that has become public, an Australian man detained as a suspected al Qaeda trainer alleges that he was transferred to Egypt and tortured there for six months. The United States agreed last week to release him and four British prisoners to their home governments.

"It is my understanding that the United States does not render individuals to countries where we believe it is more likely than not they will be tortured," he wrote. Gonzales declined to confirm whether a presidential directive authorizing the practice exists.

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