Mark Danner interviewed by Amy Goodman and Juan Gonzalez

Alberto Gonzales’ role in paving the legal groundwork that led to the torture of detainees in Abu Ghraib and Guantanamo Bay was the central focus of a Senate hearing yesterday, which is considering his nomination to succeed John Ashcroft as attorney general.
In his opening statement, Gonzales – a longtime confidante of George W Bush who served as his White House counsel – said his friendship with the president would not affect his performance as attorney general.

• Alberto Gonzales, Attorney General nominee testifying before the Senate Judiciary Committee, January 6, 2005.

After Gonzales’ opening statement, members of the Senate Judiciary Committee turned their focus to the administration’s policies on torture. Much of the discussion focused on two memos.

One, written by Gonzales in January 2002, asserted that the so-called war on terror "renders obsolete" the Geneva Convention’s strict prohibitions against torture. The other is a August 2002 Justice Department memo sought by Gonzales that outlines how to avoid violating U.S. and international terror statutes while interrogating prisoners by setting a high threshold for the definition of torture.

Speaking before a packed hearing room, Gonzales delivered more than seven hours of testimony, most of it responding to questions from the Judiciary Committee on his role in setting the stage for the abuse of detainees.

• Sen. Patrick Leahy (D-VT), questioning Attorney General nominee Alberto Gonzales.
• Sen. Edward Kennedy (D-MA), questioning Attorney General nominee Alberto Gonzales.
• Sen. Lindsey Graham (R-SC), questioning Attorney General nominee Alberto Gonzales.
• Mark Danner, New Yorker staff writer and frequent contributor to the New York Review of Books. He is also the author of the new book "Torture and Truth: America, Abu Ghraib, and the War on Terror."

JUAN GONZALEZ: In his opening statement, Gonzales, a long-time confidant of George W. Bush and White House Counsel during the president’s first term said his friendship with the president would not affect his performance as Attorney General.

ALBERTO GONZALES: With the consent of the senate, I will no longer represent only the White House. I will represent the United States of America, and its people. I understand the differences between the two roles. In the former, I have been privileged to advise the president and his staff. In the latter, I would have a far broader responsibility, to pursue justice for all of the people of our great nation, to see that the laws are enforced in a fair and impartial manner for all Americans. Wherever we pursue justice from the war on terror to corporate fraud, to civil rights.

AMY GOODMAN: After Gonzales’s opening statement, members of the Senate Judiciary Committee turned their focus to the administration’s policies on torture. Much of the discussion focused on two memos. One written by Gonzales in January, 2002, asserted that the so-called war on terror "renders obsolete the Geneva convention’s strict prohibitions against torture". The other in August, 2002, Justice Department memo sought by Gonzales that outlines how to avoid violating U.S. and international terror statutes while interrogating prisoners by setting a high threshold for the definition of torture.

JUAN GONZALEZ: Speaking before a packed hearing room, Gonzales delivered more than seven hours of testimony, most of it responding to questions from the Judiciary Committee on his role in setting the stage for the abuse of detainees. This is Democratic Senator Patrick Leahy of Vermont.

SEN. PATRICK LEAHY: I’d like to ask you a few questions about the torture memo dated in August 1, 2002, signed by Assistant Attorney General Jay Bibey. He’s now a federal appellate court judge. The memo is addressed to you. It was written at your request. This is actually the memo here. It’s a fairly lengthy memo, but addressed memorandum for Alberto Gonzales, Counsel to the president. It says, "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." in August, 2002, did you agree with that conclusion?

ALBERTO GONZALES: Senator, in connection with that opinion, I did my job as Counsel to the president to ask the question.

SEN. PATRICK LEAHY: I just want to know, did you agree—we can spend an hour with that answer, but frankly, it would be very simple. Did you agree with that interpretation of the torture statute back in August, 2002?

ALBERTO GONZALES: If i may, sir, let me try to give you a quick answer, but I’d like to put a little bit of context. There obviously we were interpreting a statute that had never been reviewed in the courts, a statute drafted by Congress. We were trying to interppret the standard set by Congress. There was discussion between the White House and Department of Justice as well as other agencies about what does this statute mean? It was a very, very difficult—I don’t recall today whether or not I was in agreement with all of the analysis, but I don’t have a disagreement with the conclusions then reached by the department. Ultimately, it is the responsibility of the department to tell us what the law means, Senator.

SEN. PATRICK LEAHY: And do you agree today that 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?

ALBERTO GONZALES: I do not, sir, that does not represent the position of the executive branch, as you know..

SEN. PATRICK LEAHY: But—

ALBERTO GONZALES: Let me finish.

SPEAKER: Let him finish the answer.

SEN. PATRICK LEAHY: But it wasn’t your position in 2002.

SPEAKER: Let him finish his answer.

ALBERTO GONZALES: Sir, what you are asking the Counsel to do is interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence in reaching a legal interpretation of the law passed by Congress. I certainly give my views. There was, of course, conversation and a give and take discussion about what does the law mean, but ultimately, by statute, the Department of Justice is charged by congress to provide legal advice on behalf of the president. We asked the question. That memo represented the position of the executive branch at the time it was issued.

AMY GOODMAN: Alberto Gonzales being questioned by Vermont Democratic Senator, Patrick Leahy at the confirmation hearings of Gonzales as Attorney General. We’re joined by Mark Danner, author of Torture and Truth: America, Abu Ghraib and the War on Terror. Your response to this section of the questioning, Mark.

MARK DANNER: Well, even seeing that again today, I must say it’s rather appalling, even worse the second time through. It’s very clear that this particular memo, the so-called torture memo, was going to be a key question—the key question of the hearings. They anticipated it. They prepared his answer. His answer essentially was he can’t remember how it was put together. He doesn’t remember whether he agreed with it. It doesn’t matter if he agreed with it because it’s the policy of the government as set out by the Department of Justice, which of course he didn’t have that much to do with it, because he’s the counsel for the president. Though now he’s going to head the Department of Justice. The critical question that he had to be asked about the redefinition of torture, he essentially ducked it. I must say, I was rather shocked by that, especially since in the last week, finally, the Justice Department very quietly replaced this memo, after two years with another memo essentially retracting that redefinition. And it’s extraordinary to me that he just didn’t come out and essentially say this was a mistake, since the entire government has recognized that it was a mistake. But it’s part and parcel of the way the hearings went, which is essentially a characteristic Bush administration way of sticking to their guns, sticking to what they originally said, denying they had made a mistake in any way, denying that doctrining decisions like this one, of which think is the key, had anything to do with the abuses on the ground and finally the abuses themselves represented policy. Now, all of those things we know because of the reports that have been done, are not true. He sat in front of the committee and asserted things, frankly, that we know not to be true. He did it with great determination, and the odds are, he will be confirmed.

JUAN GONZALEZ: And it seems to me also in listening to the hearings that on the one hand there was a certain doublespeak involved on the one hand saying I’m opposed to torture, but then he seemed to leave open when he was directly questioned, the possibility of whether the definition should be redefined, whether the Geneva Convention should be revisited by the United States.

MARK DANNER: That’s right. I think the Times in an editorial today said he was astonishingly equivocal on the question of whether or not americans could legally torture. That has been a central question now for a couple of years. He was essentially unwilling to say definitively there were no situations in which Americans could legally torture prisoners. So, I found his answers actually rather surprising, rather astonishing. Even more so watching them here. They remind me a little of Judge Clarence Thomas’s performance in front of the same committee a decade or so ago when he essentially denied that he had ever thought about abortion, denied that he ever talked about abortion, denied that he had ever had a personal position about it, and so on, and you know, there’s an assumption behind both of these performances that we have the votes. We’re going to get through. I just have to give them nothing on which to hang some sort of a contrary argument.

AMY GOODMAN: We have to go to break. When we come back, we’ll play a clip of the Kennedy questioning of Gonzales, Senator Kennedy of Massachusetts, as well as South Carolina’s Lindsey Graham.

[break]

AMY GOODMAN: It was Senator Kennedy from Massachusetts that asks these questions of the White House Counsel, Alberto Gonzales.

SEN. EDWARD KENNEDY: Now, the Post article states you chaired several meetings of which various interrogation techniques were discussed. These techniques included the threat of live burial and “water boarding,” whereby the detainee is strapped to a board, forcibly pushed under water wrapped in a wet towel and made to believe he might drown. The article states that you raised no objections. Now, without consulting military and state department experts, they were not consulted, they were not invited to important meetings, that might have been important to some, but we know of what Secretary Taft has said about his exclusion from these. Experts in laws of torture and war prove the resulting memos gave C.I.A. interrogators the legal blessings they sought. Now was it the C.I.A. That asked you?

ALBERTO GONZALES: Sir, I don’t have a specific recollection—I read the same article. I don’t know whether or not it was the C.I.A. What I can say is that after this war began, against this new kind of threat, this new kind of enemy, we realized that there was a premium on receiving information. In many ways this war on terror is a war about information. If we have information, we can defeat the enemy. We had captured some really bad people, who we were concerned had information that might prevent the loss of American lives in the future. It was important to receive that information, and people—the agencies wanted to be sure that they would not do anything that would violate our legal obligations. So, they did the right thing. They asked questions: What is lawful conduct? Because we don’t want to do anything that violates the law. Now –

SEN. EDWARD KENNEDY: So, the legal—you asked at their request, as I understand it. If this is incorrect, then correct me. I’m not attempting—or if there are provisions in that comment I meant here that are inaccurate, I want to be corrected. I want to be fair on this, but it’s my understanding, certainly was in the report, that the C.I.A. came you to, asked for the clarification. You went to the O.L.C. I want to ask you, did you ever talk to any members of the O.L.C. while they were drafting the memoranda? Did you ever suggest to them that they ought to lean forward on this issue about supporting the extreme uses of torture. Did you ever, as reported in the newspaper?

ALBERTO GONZALES: Sir, I don’t recall ever using the term sort of “leaning forward”, in terms of stretching what the law is –

SEN. EDWARD KENNEDY: Did you talk to the O.L.C. During the drafting?
ALBERTO GONZALES: There is always discussions—not always discussions —but there is often discussions between the Department of Justice and O.L.C. and the Counsel’s Office regarding legal issues. I think this is perfectly appropriate. This was an issue that the White House cared very much about to insure that the agencies were not engaged in conduct-

SEN. EDWARD KENNEDY: What were you urging them? What were you urging. They are, as I understand, charged to interpret the law. They - we have the series of different - six or seven of the laws on the conventions on torture and on the rest of that. They are charged to develop and say what the statute is. Now, what—what did you believe your role was in talking with the O.L.C. And recommending –

ALBERTO GONZALES: To understand their—to understand their views about the interpretation.

SEN. EDWARD KENNEDY: Weren’t you going to get the document? Weren’t you going to get their document? Why did you have to talk to them during the time of the drafting? It suggests in here that you were urging them to go as far as they possibly could. That’s what the newspaper report—your testimony is that you did talk to them, but you can’t remember what you told them?

ALBERTO GONZALES: Sir, I’m sure there was a discussion about the analysis about a very tough statute, a new statute, as I have said repeatedly that had never been interpreted by our courts. We wanted to make sure we got it right.

AMY GOODMAN: Alberto Gonzales being questioned by Massachusetts Senator, Ted Kennedy. Juan.

JUAN GONZALEZ: I noticed you shaking your head as we were listening to that interchange between Gonzales and Senator Kennedy. This whole question of what he did recall or didn’t recall, the importance of it.

MARK DANNER: Well, the question at issue through most of that was what was the White House involvement in coming up with this definition by which torture was made into such a narrow category that only the most brutal, severe, horrible behavior could legally be considered torture. If you do that, a lot of things that the administration wanted to do, and subsequently did do, and that every common person in every country in the world would consider torture suddenly became not torture under American law. Now, how did the Justice Department produce this memorandum, that redefined things that way. Gonzales claims, well, actually what would we do? This is the role of the Justice Department. They gave us the interpretation. We followed it. Senator Kennedy is trying to get to what has become obvious, which is that Gonzales, working as the President’s agent, asked the Justice Department for their opinion, formally, but then engaged in discussions with them essentially, that were essentially leading discussions saying, look, this is what we want.

JUAN GONZALEZ: In other words, lobbied for a legal opinion.

MARK DANNER: So they asked for an opinion that would do what the opinion subsequently did do, give them freedom to torture. This has come out recently in the New York Times, particularly has done good report on this from unnamed sources within the Justice Department saying, Hey, this guy asked us questions. They were leading questions that basically showed us what he wanted. Senator Kennedy was trying to get to that, as well as in the first part of the clip you showed, the fact that within the military itself, there was extraordinary opposition to this to this redefinition of torture, and that the administration responded as it usually does, with people in the government who object to his position —to the government’s position by cutting these people out. So, the people on the military side, the experts on the military law, the people who had spent their careers making decisions about what was legal and what wasn’t on the battlefield and in interrogations were simply cut out of the discussion entirely. They weren’t included.

AMY GOODMAN: We’re talking to Mark Danner. He is author of Torture And Truth: America, Abu Ghraib And The War On Terror, a New Yorker magazine writer. He wrote a piece in the New York Times yesterday, an op-ed piece called, “We Are All Torturers Now.” We’re going to turn to Senator Lindsey Graham, a conservative republican from South Carolina, Judge Advocate in the Air Force Reserve. Some interesting comments for Alberto Gonzales.

SEN. LINDSEY GRAHAM: The Department Of Justice memo that we’re all talking about now was in my opinion, Judge Gonzales, not a little bit wrong, but entirely wrong in its focus. Because it excluded another body of law called the Uniform Code Of Military Justice. Mr. Chairman, I have asked since October for memos from the working group by Judge Advocate General representatives that commented on this Department Of Justice policy, and I have yet to get those memos. I have read those memos. They’re classified for some bizarre reason. But generally speaking, those memos talk about that if you go down the road suggested, you’re making a u-turn as a nation, that you are going to lose the moral high ground, but more importantly, some of the techniques and legal reasoning being employed into what torture is, which is an honest thing to talk about, it’s okay to ask for legal advice. You should ask for legal advice. But this legal memo, I think, put our troops at jeopardy because the Uniform Code of Military Justice specifically makes it a crime for a member of our uniformed forces to abuse a detainee. It is a specific article of the Uniformed Code Of Military Justice for a purpose—because we want to show our troops, not just in words, but in deeds that you have an obligation to follow the law. I would like for you to comment, if you could, and I would like you to reject, if you would, the reasoning in that memo when it came time to give a torturers view of torture. Will you be willing to do that here today?

ALBERTO GONZALES: Senator, there is a lot to respond to in your statement. I would respectfully disagree with your statement that we’re becoming more like our enemy. We are nothing like our enemy, Senator. While we are struggling to try to find out at Abu Ghraib, they’re beheading people like Danny Pearl and Nick Berg. We are nothing like our enemy.

SEN. LINDSEY GRAHAM: Can I suggest to you that I didn’t say that we are like our enemy, that the worst thing we did when you compare it to Saddam Hussein was a good day there. But we’re not like who we want to be, and who we have been. That’s the point I’m trying to make. That when you start looking at torture statutes, and you look at ways around the spirit of the law, that you’re losing the moral high ground, and that was the counsel from the Secretary Of State’s office that once you start down this road, that it’s 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.

AMY GOODMAN: Republican Senator, Lindsey Graham of South Carolina questioning Alberto Gonzales at his confirmation hearings for Attorney General. Mark Danner, our guest, author of Torture And Truth: America, Abu Ghraib And The War On Terror. Your response.

MARK DANNER: Well, to me, that was the most interesting and the most important part in the entire hearings yesterday. Senator Lindsey Graham is a conservative republican from South Carolina. He also was and remains, I guess, as a reserve, a member of the Judge Advocate General in the Air Force. So, he is a military lawyer.

AMY GOODMAN: A J.A.G.

MARK DANNER: A J.A.G., exactly. You heard there the voice of the military legal person, who was thinking not only about what we can do to put the screws to prisoners in any way we can, but also how it will affect the reputation of the United States, how it will affect the treatment of United States troops themselves when they are taken into custody, and how it will accord with previous and historic American military practice. And you know, one of the things that I was trying to do in collecting all of the documents that appear in Torture And Truth, was to show that these matters were debated vigorously within the administration, and that gradually the people who objected to what the administration was determined to do, in making it easy to torture, these people were cut out. You’re getting the voice of one of those people in that Senate committee from Senator Graham. It’s very important because you cannot look at him and say, well he’s an administration critic who essentially is a crying liberal who, you know, doesn’t realize how serious the war is. It’s impossible to make that argument about him. I draw your attention to the fact that he is arguing that these steps weakened the United States, not only by putting troops at risk, but by undermining the U.S.’s reputation in the world, undermining the ideological side of this war, which the Bush administration, ironically enough, has so focused on. You know, “This is a war about democracy. We have to democratize the Middle East.” It’s a political war. Graham’s—the essence of Graham’s critique, quite apart from the fact that using these techniques will put American troops at risk and go against U.S. military law, is that it will undermine the U.S. reputation and its ability to politically persuade its enemies and to stop terrorism in the future, which supposedly is the Bush argument about what indeed we’re doing in Iraq and what indeed the country is doing in the Middle East. You know, you have to in the words of Condoleezza Rice, stop young Muslims from having a reason for driving airplanes into buildings in New York and Washington. You do that by giving them a view of a different future, the American democratic future. That’s the premise. Graham is saying very directly that by torturing, and by supplying images like that one, of - that your listeners and viewers know so well - of hooded man, the man with the hood over his head and the wires coming out of his fingers and his genitals which is known far and wide in the Arab world in the Middle East it’s become highly recognizable by supplying that sort of ammunition, you’re giving very, very strong comfort and aid to the enemy in fact.

AMY GOODMAN: Mark Danner. I want to thank you very much for being with us. That image on the cover of your book as well. Torture And Truth: America, Abu Ghraib And The War On Terror. Thank you for joining us.

MARK DANNER: Thank you.