Did counsel's memo open way to abuse?


As the top lawyer in the White House, Alberto R. Gonzales has built the foundation for the Bush administration's most sensitive legal maneuvers, including the creation of military tribunals for terror suspects and the assertion of executive privilege to keep private an array of presidential documents.

The low-key Gonzales, a longtime Bush loyalist who is often mentioned as a potential U.S. Supreme Court nominee, rarely breaks the public surface in his work. But he now faces high-profile questions about whether his legal advice in the aftermath of Sept. 11 opened the door for the mistreatment of Iraqi prisoners by U.S. soldiers.

At issue is a Jan. 25, 2002, memorandum to the president in which Gonzales outlined the legal argument for exempting Taliban and al-Qaida fighters from Geneva Conventions protections, noting as one factor the ability to quickly extract intelligence from prisoners.

"In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners," Gonzales wrote. The memo, marked "draft," also said the war on terror "renders quaint" provisions such as supplying detainees with "commissary privileges [or] athletic uniforms."

The White House rejected suggestions that the 2-year-old document cleared the way for mistreatment of war prisoners in Iraq. But its blunt conclusions touched off a series of questions that drew the White House back into the churning abuse scandal and clouded the possibility of Gonzales' one day serving as the high court's first Hispanic justice.

Scott McClellan, a White House spokesman, told reporters that the memo "related specifically to al-Qaida and the Taliban. It did not reference Iraq at all. We have made it clear that we are bound by the Geneva Conventions in Iraq."

Some Democratic lawmakers raised the possibility of a link. In a letter to Gonzales, Sen. Patrick J. Leahy, a Vermont Democrat, requested a copy of the memo "in light of recent revelations regarding the treatment of prisoners in U.S. custody."

At a hearing of the Senate Foreign Relations Committee, Connecticut Democrat Christopher J. Dodd, called the memo "unsettling," in part because of the position of its author.

"This wasn't a memo from some freshman law student who may have an ideological point of view," he said. "This is the counsel to the president of the United States."

A White House spokeswoman said yesterday that Gonzales was not available to be interviewed.

His memo, first published online by Newsweek, came to light as members of Congress from both parties pushed for answers this week about how far up the chain of command the abuse scandal could extend.

Seven low-ranking soldiers from a Western Maryland-based Army Reserve unit face criminal charges in connection with the abuse. On Wednesday, the first member of the 372nd Military Police unit to be court-martialed in the scandal pleaded guilty.

C. Boyden Gray, a Washington lawyer who served as White House counsel under former President George Bush, discounted suggestions that the abuse meted out by the soldier guards could trace to Gonzales' legal advice from two years ago.

"This memo was done post-9/11, and it doesn't have anything to do with Iraq. Was there some spillover? Well, we'll find out," Gray said. But, he added, "I just don't buy that. I think everybody in authority in Iraq knew they had to abide by the authority of the Geneva Conventions."

The memo from Gonzales followed an opinion from the Justice Department's highly regarded Office of Legal Counsel, which concluded that the Geneva Conventions protections did not apply to al-Qaida or Taliban fighters.

Gonzales noted that State Department attorneys disagreed with the conclusion, and he acknowledged potential problems: "Our position would likely provoke widespread condemnation among our allies and in some domestic quarters," he wrote. It also "could undermine U.S. military culture, which emphasizes maintaining the highest standards of conduct in combat."

It is not clear in the document where the idea originated. The Office of Legal Counsel serves the U.S. attorney general, but it is traditionally allied closely with the White House as well.

John W. Dean, the White House counsel to President Richard M. Nixon, said the Justice Department office, "by and large, issues rulings and opinions favorable to the president's thinking and wishes."

"Unfortunately, you can find lawyers to issue opinions that will take almost any position desired, and one of the standard ploys of the Bush-Cheney administration has been to get such opinions," Dean said by e-mail while traveling abroad.

But Gray and some legal scholars said the Justice Department office, comprising mainly career government attorneys, is typically conservative in its approach to the law and unlikely to pull punches.

Michael Greenberger, a University of Maryland law professor who served in the Clinton-era Justice Department, said the Office of Legal Counsel "traditionally plays the role of being the straight shooter."

"There were times I was furious because they wouldn't do what I wanted done," Gray said.

In three years at the White House, Gonzales has gained attention for serving as a key architect in the controversial efforts to create military tribunals to try terrorism suspects and to hold detainees at the U.S. military prison at Guantanamo Bay, Cuba, indefinitely and without access to courts.

But he has also been credited with serving as a moderating voice. When the White House weighed in last year against the University of Michigan's affirmative action programs in a closely watched Supreme Court case, Gonzales wrote a friend-of-the-court brief that recognized the importance of racial and ethnic diversity.

Gonzales came to Washington from Texas at the start of the Bush administration. He was serving as a justice on the Texas Supreme Court. Previously, he had served as Texas secretary of state and as general counsel to Bush while he was governor.

Gonzales was born in San Antonio, Texas, and grew up poor - one of eight children and the son of a construction worker. After high school, Gonzales enlisted in the Air Force and was later admitted to the U.S. Air Force Academy. But he switched career paths, graduating from Rice University and then from Harvard Law School.

From the time he arrived in Washington, he was considered a favorite for the Supreme Court and is still considered a front-runner, said David Garrow, an Emory University law professor and Supreme Court scholar.

"What we've seen and continue to see is that the average American voter doesn't give a hoot about how we are treating terrorism suspects," Garrow said. "Are you grossed out by this? I certainly hope so. Two years from now, can [Democrats] use this to stick it to Alberto Gonzales? Not a chance."

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