Published: November 11, 2004
In January 2002, an intense and occasionally angry debate was raging through the upper echelons of the Bush administration.
President George W. Bush had decided that al-Qaeda and Taliban fighters were not covered by the Geneva Conventions, so combatants captured on Afghan battlefields need not be accorded the rights of official prisoners of war.
Colin Powell, secretary of state, however, strongly disagreed and asked for the policy to be reviewed. In charge of the review was Mr Bush's chief legal adviser, the man he appointed on Wednesday as his new attorney-general: Alberto Gonzales.
In a January 22 memo for the president, Mr Gonzales argued that the war against terrorism was a “new paradigm” with distinct priorities most importantly, getting intelligence quickly to prevent terrorist attacks on the US.
“This new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions,” he wrote. Not applying the Geneva provisions “preserves flexibility” and “substantially reduces the threat” that administration officials would later be subject to “domestic prosecution under the War Crimes Act”.
That memo is expected to be the central issue when Mr Gonzales appears before the Senate judiciary committee for his confirmation hearings. Critics say his finding led to the increasing relaxation of legal restraints that may ultimately have led to abuses at Iraq's notorious Abu Ghraib prison.
The legal opinion, which was backed by the Justice Department and John Ashcroft, the attorney-general who resigned this week, sparked fierce debate within the administration at the time. A week later, William Taft, the State Department's legal adviser, warned Mr Gonzales that his interpretation contradicted decades of precedent.
“The President should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years,” Mr Taft wrote.
But on February 7, Mr Bush sided with Mr Gonzales and the Justice Department, designating al-Qaeda and Taliban prisoners “unlawful combatants” not covered by Geneva's protection. Mr Gonzales's input was central to the finding.
Although involvement in the Geneva debate was his most publicised role in the controversy that erupted after revelations of the Abu Ghraib abuses, the Senate hearings are likely to delve into other areas as well.
In July and August 2002, for instance, he solicited views on what interrogation methods could be legally used on al-Qaeda detainees, who had been recently moved to Guantánamo Bay. Although his views are not known, legal memoranda sent to him by Justice Department lawyers maintained “certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity” to violate US anti-torture laws. The memo also argued that Mr Bush enjoyed unrestrained powers as commander-in-chief, which would make it unconstitutional for him to be subject to anti-torture laws.