TORTURE'S PATH
The CIA had a question for the top lawyers in the Bush administration: how far could the agency go in interrogating terror suspects--in particular, Abu Zubaydah, the close-mouthed Qaeda lieutenant who was resisting standard methods? So in July of 2002 the president's chief counsel, Alberto Gonzales, convened his colleagues in his cozy, wood-paneled White House office. One by one, the lawyers went over five or six pressure techniques proposed by the CIA. One such technique, a participant recalls, was "waterboarding" (making a suspect think he might drown). Another, mock burial, was nixed as too harsh. A third, the open-handed slapping of suspects, drew much discussion. The idea was "just to shock someone with the physical impact," one lawyer explained, with "little chance of bone damage or tissue damage." Gonzales and the lawyers also discussed in great detail how to legally justify such methods.
Among those at that first White House meeting was Justice Department lawyer John Yoo, who sat on a couch along the wall. And partly out of the discussions in Gonzales's office came the most notorious legal document to emerge from last spring's Abu Ghraib interrogation scandal. This was an Aug. 1, 2002, memo--drafted by Yoo, signed by Assistant Attorney General Jay Bybee and addressed to Gonzales--which provoked outrage among human-rights advocates by narrowly defining torture. The memo concluded, among other things, that only severe pain or permanent damage that was "specifically intended" constituted torture. Mere "cruel, inhuman or degrading" treatment did not qualify.
At the White House meeting, Gonzales was concerned about observing the law, the participant recalls. "We didn't want to go over the line," he says. But Gonzales's worry was: "Are we forward-leaning enough on this?" "That's a phrase I heard Gonzales use many times," recalls this lawyer. "Lean forward" had become a catchphrase for the administration's offensive approach to the war on terror. "And the second part of that statement was always, 'Prevent an attack, save lives.' If Gonzales had any role in this, it was to be the fair arbiter of 'Are we doing enough?'"
Such aggressiveness after 9/11 was typical for Alberto Gonzales, the soft-spoken Harvard Law graduate who has been George W. Bush's lawyer since the latter's days in the Texas governor's mansion. Gonzales's legal and ethical advice will be the focus of confirmation hearings next month on his nomination as Bush's second-term attorney general. In the first months after 9/11, Gonzales helped to craft some of the most momentous and controversial decisions of Bush's presidency. Among them: to create military commissions for the trials of terrorists, to designate U.S. citizens as "enemy combatants" and to disregard the Geneva Conventions in the treatment of prisoners at Guantanamo Bay. But until now he has steered clear of the spotlight. "He's kind of an enigma," says one lawyer who worked with him. "His defining characteristic is loyalty to the president."
Yet 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 other documents. Sources close to the Senate Judiciary Committee say a chief focus of the hearings will be Gonzales's role in the so-called "torture memo," as well as his legal judgment in urging Bush to sidestep the Geneva Conventions. In a Jan. 25, 2002, memo to Bush, Gonzales said the new war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." Some State Department lawyers charge that Gonzales misrepresented so many legal considerations and facts (including hard conclusions by State's Southeast Asia bureau about the nature of the Taliban) that one lawyer considers the memo to be "an ethical breach." In response, a senior White House official says Gonzales's memo was only a "draft" and just one part of an extensive decision-making process in which all views were aired.
By several accounts, Gonzales and his team were constantly looking to push legal limits, to widen and maximize Bush's powers. Just two weeks after September 11, an earlier secret memo drafted by Yoo had landed on Gonzales's desk, arguing there were effectively "no limits" on Bush's powers to respond to the attacks. Startlingly, the memo said the president could deploy military force "pre-emptively" against terror groups or entire countries that harbored them, "whether or not they can be linked to the specific terror incidents of Sept. 11." The president's decisions "are for him alone and are unreviewable," the memo said. Never before disclosed, the Sept. 25, 2001, memo was quietly posted on an obscure government Web site late last week. The 15-page memo is the earliest known statement of Bush's doctrine of pre-emptive war.
Last June, Gonzales indicated he no longer held some of the extreme views of the president's "unlimited" powers first laid out in this memo. Amid the furor over the Abu Ghraib Prison photos that depicted Iraqis being abused and humiliated by U.S. soldiers, Gonzales insisted to reporters that the "torture" memo of Aug. 1 and other documents then making headlines were little more than "irrelevant" legal theorizing. It is not surprising why Gonzales was distancing himself: the Justice Department's Office of Professional Responsibility recently launched an investigation into the origins of the Aug. 1 memo. The probe will look into whether the lawyers were irresponsible in pushing beyond the normal boundaries of advocacy. In a tense meeting last June, Jack Goldsmith, then head of the Justice Department's Office of Legal Counsel, told Gonzales he was withdrawing the Aug. 1 memo. Goldsmith then resigned--at least partly due to his discomfort about the memo. It was only then that Gonzales decided to distance himself from it. (Goldsmith declined to comment.)
But there is no evidence that Gonzales ever rejected such reasoning before the Abu Ghraib scandal came to light. On the contrary, sources say, he and his staff relied heavily on John Yoo and his legal theories. Most observers still expect Gonzales to be confirmed by the GOP-majority Senate. Yet it's clear he'll face some tough questioning first.
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Klaidman, a former NEWSWEEK managing editor, is writing a book on President Obama and terrorism to be published by Houghton Mifflin Harcourt in 2012.
Michael Isikoff has been an award-winning investigative correspondent for Newsweek since 2004. He has written extensively on the U.S. government's war on terrorism, the conflicts in Iraq and Afghanistan, presidential politics and other national issues. His book, "Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War," co-written with David Corn, was an instant New York Times best-seller when it was published in September, 2006. The book was hailed by the New York Times Book Review as "fascinating reading" and "the most comprehensive account of the White House's political machinations" in the run up to the war in Iraq. Since January 2009, Isikoff has been an MSNBC contributor, making regular appearances on the Rachel Maddow Show and Hardball w/ Chris Matthews.
Ever since the events of September 11, Isikoff has broken repeated stories about the U.S. government's war on terror and won numerous journalism awards. His blog "DeClassified: Investigative Reporting in Real Time," which appears regularly on Newsweek's Web site and is written with MarkHosenball, has become a must-read for senior U.S. intelligence officials. Isikoff and Hosenball won the 2005 award from the Society of Professional Journalists for best investigative reporting online.
Isikoff's June 2002 Newsweek cover story on U.S. intelligence failures that preceded the 9-11 terror attacks, along with a series of related articles, was honored with the Investigative Reporters and Editors top prize for investigative reporting in magazine journalism. He was honored, along with a team of Newsweek reporters, by the Society of Professional Journalists for coverage of the Abu Ghraib scandal. For that coverage, Isikoff obtained exclusive internal White House, Justice Department and State Department memos showing how decisions made at the highest levels of the Bush administration led to abuses in the interrogation of terror suspects. Isikoff was also part of a reporting team that earned Newsweek the National Magazine Award for General Excellence in 2002, the highest award in magazine journalism, for their coverage of the aftermath of the September 11 terror attacks.
Isikoff's exclusive reporting on the Monica Lewinsky scandal gained him national attention in 1998, including profiles in The New York Times and The Washington Post and a guest appearance on "Late Show with David Letterman." His coverage of the events that lead to President Bill Clinton's impeachment earned Newsweek the prestigious National Magazine Award in the Reporting category in 1999. Isikoff's reporting also won the National Headliner Award, the Edgar A. Poe Award presented by the White House Correspondents Association and the Gerald R. Ford Journalism Prize for Reporting on the Presidency. In 2001, Isikoff was named on a list of "most influential journalists" in the nation's capital by Washingtonian magazine.
Isikoff is the author of "Uncovering Clinton: A Reporter's Story," a book that chronicled his own reporting of the Lewinsky story and was hailed by a critic for The Washington Post-Los Angeles Times news service as "the absolutely essential narrative of the scandal with revelations that no one would have thought possible." The book, also a New York Times bestseller, was named Best Non-Fiction Book of 1999 by the Book of the Month Club.
Isikoff came to Newsweek from The Washington Post, where he had been a reporter since September 1981. There he covered the Justice Department and the Persian Gulf War, reported on international drug operations in Latin America and worked on the Post's financial news desk. Isikoff graduated from Washington University with a B.A. in 1974 and received a Masters in Journalism from Northwestern University's Medill School of Journalism in 1976.
Michael Hirsh covers international affairs for NEWSWEEK reporting on a range of topics from Homeland Security to postwar Iraq. He co-authored the November 3, 2003 cover story, "Bush's $87 Billion Mess," about the Iraq reconstruction plan. The issue was one of three that won the 2004 National Magazine Award for General Excellence.
Hirsh writes a column on Newsweek.com entitled "The World from Washington" focusing on foreign policy issues and serves as Washington Web Editor for Newsweek. He also edited NEWSWEEK's "Issues 2007" special issue, which explores all facets and issues of globalization.
Hirsh was the magazine's Foreign Editor from January 2001 to January 2002, and helped guide Newsweek's award-winning coverage of the September 11 attacks and the war on terror. Before that he was a Senior Editor/Chief Diplomatic Correspondent in the Washington bureau, writing about foreign affairs and international economics. Hirsh was also managing editor for the Newsweek International special issue "ISSUES 2001," the second in a series of three annual reviews of the global economy in the new century.
From September 1998 to December 1999, as Diplomatic Correspondent, Hirsh covered foreign policy, the State Department and the Treasury. He moved to the Washington D.C. bureau in May 1997, previously serving as a senior editor of Newsweek International, covering the same beat.
Prior to joining NEWSWEEK in October 1994 as a New York-based senior writer, Hirsh served as the Tokyo-based Asia Bureau Chief for Institutional Investor from 1992 to 1994. Previously, he was a correspondent for the Associated Press in Tokyo and a National Editor in New York.
Hirsh was co-winner of the 2002 Ed Cunningham Award for best magazine reporting from abroad for Newsweek's terror coverage and contributed to the team of Newsweek reporters who earned the magazine the prestigious 2002 National Magazine Award for General Excellence, also for the magazine's coverage of the war on terror. Hirsh also won a Deadline Club Award in 1997 for investigative reporting on his expose of the IRS's abusive practices, and was one of five finalists for a 1994 Gerald Loeb Award for Distinguished Business and Financial Journalism for his article, "China's Financial Revolutionaries." It profiled the new generation of mainland Chinese businessmen who are striving to build a capitalist financial system from scratch. Hirsh is the author of the nonfiction book "At War with Ourselves" (Oxford University Press, 2003) which explores America's foreign policy and its global role.
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