Confirmation Controversy

This is a partial transcript of "Special Report With Brit Hume," Jan. 5, 2005, that has been edited for clarity.

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BRIT HUME, HOST: Headlines in The Washington Post and New York Times Wednesday tell you what White House counsel Alberto Gonzales will face in the confirmation hearing starting tomorrow. The issue will be the so-called "torture memos." As The Post’s Ann Applebaum said in exemplifying the criticism, "Anyone who has ever wanted the United States to be to play a role in promoting and supporting democracy and human rights around the world, ought to oppose the appointment of Alberta Gonzales, if only on the grounds that he is associated with bad legal a advice that has damaged our ability to do so."

So what are the torture memos? Why were they drafted? What did they say? For answers, we turn to Bradford Berenson, a lawyers who was in Bush White House counsel’s office during the time in question.

Welcome back.

BRADFORD BERENSON, FMR. ASSOC. WHITE HOUSE COUNSEL: Thank you.

HUME: So, what are there to torture memos, so called?

BERENSON: The torture memos are memos written by the Office of Legal Counsel and the Department of Justice to Judge Gonzales as White House counsel, explaining to him what Congress’ definition of torture was, that is, what U.S. law defines as torture.

Judge Gonzales asked the opinion of the Department of Justice on this question so that the United States would not step over that line, and would not violate what Congress had laid down as the rule against torture.

HUME: What roughly did the memos conclude?

BERENSON: Roughly, the memos concluded that torture consists of the intentional infliction of the severe physical or emotional pain. The controversial part of it is trying to further amplify that and further explain it, and say what quantum of physical or emotional pain would amount to severe physical or emotional pain? And the Department of Justice said it had to be very severe, such as death or organ failure. And some people think that that was too...

HUME: Strong?

BERENSON: Too stingy a definition of torture. That it should be a bit broader than that.

HUME: And when he received these memos that outlined that, did he approve them, accept them, pass them along, make them part of policy? What happened?

BERENSON: Well, that is an excellent question because, of course, it’s not fair to hold against the person who asks the question the answer that he receives. As far as I know, that definition of torture never became the basis for U.S. policy for what we were actually doing on the ground.

There was a second and separate decision made at the policy-making levels of the federal government, about what interrogation techniques would be used and would be acceptable. All which had to satisfy the Department of Justice definition.

HUME: Now, when those decisions were made, did they — were they so- called stingy a definition, as the Department of Justice memo suggested the law might accommodate?

BERENSON: That is all in the eye of the beholder. Some of these techniques such as water boarding.

HUME: What is water boarding?

BERENSON: Water boarding is a technique, which induces a false sense in the person who’s being interrogated that he’s drowning. You are suspended with your head lower than your feet, wet towels over your face and water drip and some water dripped on those towels. And it induces a false sense of suffocation or drowning.

HUME: By the way, was the practice ever used to your knowledge?

BERENSON: I believe it was an approved interrogation technique. I believe it was, but I’m not certain.

HUME: Right.

BERENSON: But in any event, whether that amounts to something that is cruel and inhumane but short of torture, or whether it’s perfectly acceptable as a way of putting pressure on a recalcitrant terrorist suspect, is very much in the eye of the beholder. These are very difficult, very sensitive policy judgments that somebody had to step up and make.

HUME: Now, how do the Geneva Conventions come into play here?

BERENSON: The Geneva Conventions are really an issue entirely separate of the question of what interrogation techniques can be used.

HUME: But didn’t Judge Gonzales have some assessments of the Geneva Conventions that is also included in the so- called torture memos loosely spoken of?

BERENSON: Yes. There has been some controversy surrounding Judge Gonzales’ determination that the Geneva Conventions do not apply to Al Qaeda. That is, al Qaeda detainees are not entitled to be treated as prisoners of war. And that likewise, Taliban detainees are not entitled to be treated as prisoners of war.

HUME: Why did he reach that conclusion?

BERENSON: Well, he reached that conclusion for a couple of different reasons. The most important is that Geneva Conventions are treaties. They’re obligation, contracts that exist between nation-states. Al Qaeda has never signed them or agreed to abide by them, and neither had the Taliban.

And so, normally you say we will treat your prisoners in a certain way in return for your agreeing to treat ours in a certain way. We know what al Qaeda does to our prisoners. They certainly don’t accord them Geneva rights.

HUME: Didn’t we articulate the view though, at the Pentagon and elsewhere, that our treatment of Al Qaeda and Taliban prisoners would be consistent with the Geneva Conventions? And what role did Judge Gonzales’ opinion have to do with all that?

BERENSON: That is really the other part of what he decided. He said they are not entitled to POW status and all the rights that POWs get under the Geneva Convention. But we will as a nation treat them humanely and consistent with the overall principles of Geneva, in so far as we are able. So they would be given: food, shelter, humane treatment, freedom of religious worship, would not be tortured, et cetera.

HUME: It is alleged — this is very little time though. It is alleged his legal arguments and the memos he solicited have had constituted the basis for, for example, Abu Ghraib.

BERENSON: Yes. That’s completely specious because the Geneva Conventions, in fact, have applied from the beginning in Iraq. And the U.S. government has said that from the start. So the determination about Geneva, as it applies to al Qaeda and the Taliban, literally has zero do to with what happens in Abu Ghraib. That was just a garden-variety abuse and violation of the rules.

HUME: Got you. Thanks very much for coming in.

BERENSON: You’re welcome.

HUME: Glad to have you.

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