By Eric Lichtblau
New York Times
19 January 2005
Washington - Officers of the Central Intelligence Agency and other nonmilitary personnel fall outside the bounds of a 2002 directive issued by President Bush that pledged the humane treatment of prisoners in American custody, Alberto R. Gonzales, the White House counsel, said in documents released on Tuesday.
In written responses to questions posed by senators as part of his confirmation for attorney general, Mr. Gonzales also said a separate Congressional ban on cruel, unusual and inhumane treatment had "a limited reach" and did not apply in all cases to "aliens overseas." That position has clear implications for prisoners held in American custody at Guantánamo Bay, Cuba, and in Iraq, legal analysts said.
At the same time, however, the president has a clear policy opposing torture, and "the C.I.A. and other nonmilitary personnel are fully bound" by it, Mr. Gonzales said.
The administration's views on torture and the treatment of prisoners have been the focus of the process of confirming Mr. Gonzales, and a number of senators had pressed him for a fuller explanation, unsatisfied with the answers he gave at his confirmation hearing before the Senate Judiciary Committee.
His written responses, totaling more than 200 pages on torture and other questions and released Tuesday by the committee's Democrats, offered one of the administration's most expansive statements of its positions on a variety of issues, particularly regarding laws and policies governing C.I.A. interrogation of terror suspects.
Mr. Gonzales's acknowledgment in the written statements that the White House did not consider the C.I.A. bound by the same rules as military personnel is significant because the intelligence agency has carried out some of the government's most aggressive and controversial interrogation tactics in interviewing "high value" terror suspects. These techniques include "water boarding," in which interrogators make it appear that the suspect will be drowned.
Martin Lederman, a former Justice Department lawyer who has analyzed the administration's legal positions on treatment of prisoners, said the documents released Tuesday made it clear that the White House had carved an exemption for the C.I.A. in how it goes about interrogating terror suspects, allowing the agency to engage in conduct outside the United States that would be unconstitutionally abusive within its borders. Although the C.I.A. has been largely bound by Congressional bans on torture, Mr. Lederman said that standard was more permissive than the 2002 directive from Mr. Bush.
Last month, at the urging of the White House, Congressional leaders scrapped a legislative measure that would have imposed new restrictions on the use of extreme interrogation measures by intelligence officers at the C.I.A. and elsewhere. Mr. Gonzales said in the newly released answers that he had not been involved in the lobbying effort
"But it's notable," Mr. Lederman added, "that Gonzales is not willing to tell the senators or anyone else just what techniques the C.I.A. has actually been authorized to use."
Indeed, Mr. Gonzales declined to say in his written responses to the committee what interrogation tactics would constitute torture in his view or which ones should be banned.
That question, he indicated, is again under review by the administration. But if the administration "were to begin ruling out speculated interrogation practices" in public, he wrote, "we would fairly rapidly provide Al Qaeda with a road map concerning the interrogation that captured terrorists can expect to face and would enable Al Qaeda to improve its counter-interrogation training to match it."
Some Democrats said they remained unsatisfied with Mr. Gonzales's responses.
"This was another missed opportunity for straight answers and accountability," declared Senator Patrick J. Leahy of Vermont, the Judiciary Committee's ranking Democrat, who said he considered most of Mr. Gonzales's written answers to be "vague, unresponsive or AWOL."
Senator Arlen Specter, the Pennsylvania Republican who leads the committee, has scheduled a meeting for Wednesday on the nomination. But Congressional officials said it was unlikely that the nomination would come to a vote for at least a week, in part because the committee may not have enough senators for a quorum Wednesday and in part because some Democrats want to press the nominee further about the administration's positions on torture.
While Mr. Gonzales still appears likely to be confirmed, several Democratic senators, including Edward M. Kennedy of Massachusetts and Charles E. Schumer of New York, say they are rethinking their support.
Among the issues addressed by Mr. Gonzales in his written responses Tuesday were his continued support for the USA Patriot Act, his support for Roe v. Wade as "the law of the land" and his support for a ban on assault weapons, a prohibition that Congress allowed to expire last year. But the bulk of the questions, after abuses in Iraq and at Guantánamo Bay, centered on the administration's treatment of prisoners in the campaign against terrorism.
In a directive issued to senior administration officials in February 2002 on the treatment of the hundreds of men seized during the war in Afghanistan, President Bush reaffirmed a Pentagon policy requiring humane treatment of prisoners.
At the time, the White House cast the directive in broad terms. Ari Fleischer, then the White House spokesman, said in announcing the policy, "Consistent with the American values and the principles of the Geneva Convention, the United States has treated and will continue to treat all Taliban and Al Qaeda detainees in Guantánamo Bay humanely and consistent with the principles of the Geneva Convention."
Questioned by Senator Leahy and others about the directive, Mr. Gonzales said in his written reply that the president's policy "was designed to provided guidance to the United States armed services." Asked whether C.I.A. officers and other nonmilitary personnel fell under that order, he said, "No."
In intense internal discussions that began soon after the Sept. 11 attacks, the C.I.A. and other intelligence agencies pressed for greater power to use coercive techniques against "high value" military targets, and for legal protection of their officers who used such tactics.
Such discussions, Mr. Gonzales said in one written answer Tuesday, resulted from "concerns that certain terrorists had information that might save American lives."
"There was a desire to explore certain methods of questioning these terrorists," he said, "but there was concern that nothing be done that would violate the law."
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Citation: Eric Lichtblau, "Gonzales Says '02 Policy on Detainees Doesn't Bind C.I.A.," New York Times, 19 January 2005.
Original URL: http://www.nytimes.com/2005/01/19/politics/19gonzales.html?pagewanted=print&position=
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