An August report by a panel of experts appointed by the Defense Department endorsed the idea of adapting the 1949 conventions "to the realities of the nature of conflict in the 21st century." It particularly urged the creation of a legal category for detainees from terrorist groups, who presumably would not be afforded the same protections as other detainees. The International Committee of the Red Cross immediately condemned the idea of changing the Geneva Conventions.
Sen. Lindsey O. Graham (R-S.C.), who is a judge advocate in the Air Force Reserve, joined Democrats in criticizing some of the administration's conclusions on detention and interrogation policies. He said policymakers ignored the advice of seasoned military professionals.
"When you start looking at torture statutes and you look at ways around the spirit of the law . . . you're losing the moral high ground," Graham said. "Once you start down this road, it is very hard to come back. So I do believe we have lost our way, and my challenge to you as a leader of this nation is to help us find our way without giving up our obligation and right to fight our enemy."
Other Republicans on the committee strongly defended Gonzales, a counsel to then-Gov. George W. Bush and a former Texas Supreme Court judge, saying he was being unfairly used as a scapegoat by critics of the administration's anti-terrorism policies. Sen. John Cornyn (R-Tex.) said Gonzales's conclusion that al Qaeda and Taliban fighters are not protected under the Geneva Conventions is supported by other legal opinions. Cornyn characterized the 2002 memo on torture as "a memo he [Gonzales] didn't write, interpreting a law he didn't draft." The memo was written by the Justice Department's Office of Legal Counsel.
"President Bush and Judge Gonzales have both unequivocally, clearly and repeatedly rejected the use of torture," Cornyn said. "But is there anyone here today who would fail to use every legal means to collect intelligence from terrorists in order to protect American lives? I certainly hope not."
Four different senators tried to pin down Gonzales on the August 2002 memo's controversial assertion that a president had the power to authorize torture in unusual circumstances, but Gonzales deflected that, saying it was a "hypothetical question." A new memo issued by the Justice Department last month also avoided the question of presidential power.
At the same time, Gonzales did not rule out reaching such a conclusion in the future. "I would have to know what . . . is the national interest that the president may have to consider," he told Sen. Russell Feingold (D-Wis.).
Gonzales acknowledged under questioning from Sen. Edward M. Kennedy (D-Mass.) that he took part in discussions about the legality of high-pressure interrogation techniques. But he said it was not his "job to decide which methods of obtaining information from terrorists would be most effective" or whether such methods are prohibited by a 1994 law barring torture.
"That would be a job for the Department of Justice, and I never . . . influenced or pressured the department to bless any of those techniques," he said.
Kennedy responded that "just as an attorney, as a human being, I would have thought that . . . if there were recommendations that were so blatantly and flagrantly over the line in terms of torture, that you would have recognized them."
In response to a question from Sen. Richard J. Durbin (D-Ill.) about whether U.S. personnel could legally engage in torture under any circumstances, Gonzales said: "I don't believe so, but I'd want to get back to you on that and make sure I don't provide a misleading answer."
Gonzales expressed skepticism about the reliability of documents obtained in a lawsuit by the American Civil Liberties Union indicating that as many as 26 FBI agents had reported seeing the mistreatment of detainees at the Guantanamo Bay prison. He said that one FBI agent had asserted erroneously that a presidential order authorized aggressive interrogation techniques, and that "if something like that is wrong in these e-mails, there may be other facts that are wrong."
Research editor Lucy Shackelford contributed to this report.
