True Faith and Allegiance

by Alberto R. Gonzales

  Normally, the DOJ would not turn over a highly classified legal opinion such as the one regarding the CIA interrogations. When I was consulted, I suggested that we should first propose giving an oral briefing to the members of the Senate committee.

  As the DOD finalized its rules on interrogation techniques, it planned to implement up to thirty-five techniques, twenty-five of which essentially mimicked the Army Field Manuals. It appeared that DOJ would be willing to sign off on the remaining eleven techniques if there were proper precautions. If, however, Rumsfeld decided to authorize these eleven, John Ashcroft wanted him to brief the appropriate members of Congress.

  On top of everything else swirling around the interrogation issues, the inspector general for the Department of Justice had begun an investigation of the treatment of people in custody under DOJ following 9/11. I was informed of a draft IG report finding that Larry Thompson, the deputy attorney general, made mistakes regarding certain detention actions he authorized—nothing criminal—that led to certain people’s rights being violated in the wake of the 9/11 attacks.

  I was irritated by this news. Larry Thompson was the quintessential professional. In the immediate aftermath of the September 11 attacks, he responded as anyone in his position would have, doing all that he could to collect information and identify threats to America. I didn’t like the inspector general’s twenty-twenty hindsight as he second-guessed the professional judgment of DOJ leadership on a national security issue in a time of war. It would not be the last time I’d encounter it.

  The next day, Jim Haynes called me at about 6:30 a.m., as he often did. Jim informed me that Rumsfeld planned to approve only twenty-four of the thirty-five techniques suggested by Mary Walker’s group, which he did on April 16, 2003. Ultimately, the JAGs’ opposition carried the day.

  In no case was I ever specifically aware when or if the CIA or DOD intended to use enhanced interrogation techniques on a particular detainee. There was no reason for me to know. Justice had provided the legal guidelines, so it was now up to the intelligence and military professionals to follow that advice. Contrary to highly partisan reports issued in 2015, for the most part both the CIA and DOD interrogators maintained the highest integrity during the questioning of detainees. In the few cases when they did not, disciplinary actions were taken immediately.

  Nor was I regularly informed about what information was ascertained as a result of the enhanced techniques, only that they were effective.

  During the latter part of July 2003, our intelligence community reported major threat concerns. On July 29, the NCS met in the Situation Room at the White House to evaluate the reports. I learned that al-Qaeda was intent on conducting another 9/11-style attack in the summer of 2003. Despite hardening our assets, our intelligence officials believed al-Qaeda still planned to use airplanes as weapons.

  We had no specific target, but we also had great concerns about biological attacks using anthrax. The president decided that if we had imminent threats, we needed to set priority names on the watch list. He asked multiple questions of his team that morning, such as: Will the nationality of the enemy change?

  Most certainly, was the answer.

  Is there anything more that we can do to protect domestic flights?

  With the greater threat from international flights, have we assessed vulnerabilities of foreign airlines and asked them to change procedures?

  Of course, we were already looking at foreign cockpit crews and foreign air marshals. Would raising the threat level change al-Qaeda’s behavior? Does it make sense to play with their minds and plant false leads about what we know?

  The questions kept on coming.

  In early 2004, news broke about a scandal at Abu Ghraib prison—complete with photographs of US soldiers taunting naked Iraqi prisoners. The photos documented sadistic abuse of the prisoners in disturbing and humiliating sexual acts, devoid of human dignity.

  I first learned of the despicable acts from Jim Haynes. I knew immediately that this would do major damage to our interrogation efforts. Sadly, the actions of a few acting on their own initiative would tarnish the reputations of so many people taking extraordinary steps to legally gather information and to protect our country.

  Critics immediately blamed the president’s decision on the application of the Geneva Conventions as a contributing factor to the lessening of our values, asserting that this in turn resulted in the atrocities at Abu Ghraib.

  Nothing could be further from the truth. What happened at Abu Ghraib had nothing to do with interrogations or gathering of information from detainees. The soldiers abusing those prisoners were not acting according to orders; they had no authority to conduct interrogations; they were not in charge of getting information out of the prisoners. And frankly, the particular prisoners themselves were not of great interest to our military or CIA intelligence, nor were they being held at Abu Ghraib so they could be interrogated.

  No, unfortunately, the abusive guards were acting on their own, totally contrary to military conduct and all sense of human dignity. No senior officials in the Department of Defense or in the entire Bush administration encouraged or condoned such actions.

  What those soldiers did was cruel, sadistic behavior that I condemned immediately, as did many others in the administration. Blaming the atrocities at Abu Ghraib on Bush policies also ignored the fact that only a handful of guards on one cellblock involving one night shift engaged in this conduct. All other American personnel at Abu Ghraib prison understood clearly their legal obligations to treat prisoners humanely. No one else was confused about the legal requirement. The abusive soldiers knew right from wrong. To absolve the few offenders of their responsibility for their actions and blame President Bush robs credit and honor from the hundreds of thousands of American soldiers who followed the rules. Indeed, between 2001 and 2006, more than eighty thousand captured personnel passed through DOD custody. When an allegation of wrongdoing was asserted, it was promptly investigated and prosecuted when appropriate.15 In all that time, and with the large number of detainees handled, only a few known instances of abuse took place and the abusers were punished; some went to prison.

  Unfortunately, the Abu Ghraib disclosures placed a spotlight on the interrogation efforts of the Bush administration and ignited a firestorm of debate on torture, despite President Bush’s adamant orders to the contrary from the outset.

  Although I had not authored the guidance memos, because of my role in ensuring the issue received appropriate legal review and my involvement in the legal analysis during the process, my name became associated with “the torture memos.” Still today, critics attribute the DOJ legal opinions solely to me and hold me responsible for the interrogation policy. In truth, I never wielded that much power.

  Interestingly, some people argued that circumstances might necessitate torture if it meant saving lives. At a June 2004 Senate Judiciary Committee hearing, New York’s Democratic senator Charles Schumer bluntly stated:

  There are times when we all get in high dudgeon. We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake. Take the hypothetical: If we knew that there was a nuclear bomb hidden in an American city, and we believed that some kind of torture, fairly severe maybe, would give us a better chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say, “Do what you have to do.” So it is easy to sit back in the armchair and say that torture can never be used. But when you are in the foxhole, it is a very different deal. And I respect—I think we all respect—the fact that the president is in the foxhole every day.16

  Ironically, there was no equivocation on the part of President Bush. He was firm; he reiterated that under no circumstances would he authorize or encourage our intelligence agencies or military personnel to engage in torture. Personally, I supported his position based on my understandi
ng of the law and history, not simply because that was what the president wanted.

  No question about it, our post-9/11 world requires us to make tough choices about coercive actions that might prevent future attacks. Not everyone has the stomach for it. But we should never lose sight of the advantages to our citizens when our government makes tough but lawful choices. It has not been accidental that our nation, thanks to our intelligence agencies and law enforcement personnel, has thwarted other similar attacks.

  A good bit of credit should be attributed to the fact that we are also very good listeners.

  CHAPTER 21

  RACE TO THE COURTHOUSE

  George W. Bush’s tenure in the White House is irrevocably linked with what happened on September 11, 2001, but there was much more that required our attention. Certainly, after 9/11, threats of further attacks pervaded every aspect of life and work in the White House. Nevertheless, while grappling with the daily briefings on potential terrorist threats, we were also dealing with a myriad of other major issues—everything from tax cuts to a new national energy policy to evaluating and planning for potential Supreme Court nominations to “no child left behind” improvements in education to stem cell research and a host of other efforts to move our country forward. In addition, we had concerns over a resurgent Russia, a less-than-cooperative China, a nuclear-threatening North Korea, as well as serious emerging issues in Syria, Iran, Iraq, and Israel.

  Meanwhile, I was still attempting to maintain a “normal” family life, no easy task since I was working so much. Consequently, Becky shouldered more of our parenting responsibilities. We were one of the few couples in the upper echelons of the Bush administration who had young children. Karen and Jerry Hughes had a son, Robert, in his early teens; others had older teens, and a few had young adults out on their own. But our younger boys were Cub Scout and Boy Scout ages. Everyone in the administration, of course, was concerned about balancing time as parents with their many responsibilities. To me, Becky stood especially tall and strong through this time in our marriage and family. In many ways she served as both mom and dad during those early years in the lives of our boys. She is one of the most remarkable women I have ever known.

  Prior to 9/11, President Bush had wanted to sign into law a comprehensive immigration reform bill. Unfortunately, after 9/11, talk of immigration reform disappeared, except for the need of increased security on our borders. A few years later, during my first meeting in Mexico as attorney general, my counterparts there admitted to me that their worst nightmare was a 9/11-type attack beginning with an illegal crossing of our border from Mexico. If they are worried about such an attack, how can we ignore immigration issues? I wondered—and still do.

  Speculation continued in the media in 2002 about my becoming the first Hispanic on the Supreme Court. Washington’s legal elite and social conservatives, however, expressed strong reservations and quite negative opinions about me. I was not a Washington insider, nor was I part of the legal elite; I was not reliably “conservative enough” for them. Some of my Hispanic friends wondered whether the opposition was because of my race.

  I was intrigued by all the attention and by now slightly amused by the criticism, but I focused on my job. I hoped the hostility was not racial. As a Hispanic and as a Christian, I understand well the need for better racial relations in America. Certainly “black lives matter,” but the truth is, every life matters. Racially charged responses to incidents such as those experienced in Ferguson, Staten Island, and Baltimore often can be prevented when we remind one another that we are all made in the image of God, that as the Sunday school song concludes, “red and yellow, black and white; they are [all] precious in God’s sight.” The answer today is not more laws, as important as they have been in the past; the answer is the transformation of our hearts.

  Consequently, when a race-related issue popped up early in the Bush administration, I knew we could not ignore it. But I failed to anticipate how it would damage my relationship with leading members of the Justice Department and further impair my reputation among conservative movers and thinkers.

  Among the less publicized but highly important domestic matters with which I was concerned were the competing views of “affirmative action,” spawned by a pair of controversial cases involving the admissions programs in the college and at the law school of the University of Michigan. The university and law school were using a deliberate admissions model to decide which students were allowed entrance.

  For supporters of affirmative action programs in education, the legal justification for considering race in admission decisions was Justice Louis F. Powell Jr.’s opinion in the landmark 1978 case of Regents of the University of California v. Bakke. In this case, Justice Powell stated that “the attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education.” Although no other Supreme Court justice joined Powell’s opinion, it has been relied upon by universities as justification to consider race, among other factors, in making admissions decisions. Unfortunately, over time, faced with growing pressure to attract a more diverse student body, many schools began giving greater weight to race when deciding which students to accept.

  The University of Michigan was an example of this. In 2003, the university’s undergraduate admission process admitted students based on their scores on a 150-point scale. A student received twenty points for being a racial minority, compared to only twelve points for SAT/ACT test scores; ten points for in-state residency; four points for alumni relationships; three points for an outstanding essay; and five points for achievement in leadership on a national level. Obviously, skin color played a major role in deciding who got into the University of Michigan and who did not.

  At the same time, the University of Michigan law school’s admission program evaluated a composite of a student’s law school admission test scores (the LSAT) and undergraduate grade point average. Factored in were “soft” variables, which included a potential student’s race. According to the law school, it did not set aside or reserve spots exclusively for minority students. It did, however, consider the total number of “underrepresented students,” and it sought to enroll a significant number of such underrepresented minority students.

  In 2002, a group of white students who had been denied admission to the University of Michigan’s undergraduate program and to the law school sued the university and the law school, alleging violations of equal protection under the law. Prior to this, under equal protection decisions, an academic institution could consider race in its policies only if it served a “compelling government interest” and the admissions program was “narrowly tailored” to meet that interest. The US Supreme Court had ruled that to satisfy the requirement of narrow tailoring in the field of education, a state institution would first have to exhaust race-neutral alternatives to address the compelling government interest. Consider, for example, Texas’s top 10 percent law: if you graduate in the top 10 percent of your public high school class, you are automatically admitted to a state school. So for high schools in South Texas where there are large Hispanic populations, more Hispanics have a chance to go to college regardless of their SAT or ACT scores and without consideration of race in the admissions process.

  Except for Justice Powell’s lone opinion on the matter, the Supreme Court had never weighed in on whether racial diversity in university admissions policies is a compelling government interest. So conservative groups viewed the Michigan cases as the best opportunity in several years to eliminate affirmative action once and for all, to strike down Powell’s opinion in Bakke, and to prohibit any future consideration of race in university admissions decisions.

  I was advised by the leadership at the Justice Department that the Supreme Court had always solicited the views of the sitting administration with respect to race cases, so that placed pressure on the Bush administration to take a position on the Michigan litigation. As White House counsel I had an important role to play, working w
ith the Department of Justice, to develop a recommendation for the president. Because my name was increasingly bandied about as a potential Supreme Court nomination, some conservatives viewed my advice on the Michigan cases as a test of my fidelity to the Constitution, and to conservative values. I had never endorsed racial quotas or publicly expressed an opinion about race preferences. That alone caused great consternation and suspicion in some conservative ranks.

  I approached the Michigan cases with an open mind, but my own life experiences heightened my sensitivity to the importance of every American, regardless of his or her skin color, having the same opportunity to pursue higher education. I readily acknowledged in some of my speeches to various groups that I had probably experienced both extremes—I had received benefits by being Hispanic, and I had been denied opportunities because of my race. For example, when Governor George W. Bush appointed me to the Texas Supreme Court in 1999, he acknowledged publicly that my ethnicity had been a factor in his decision, but he quickly added that I was appointed primarily because of my qualifications.

  On the other hand, I had endured discrimination at times throughout my life, albeit not as overtly as my parents and previous generations of Hispanics. Nevertheless, I choose to believe that the pluses and minuses of my experiences cancel each other out over my lifetime. I believe it is more important to focus on what a person does when given an opportunity, rather than why that person was given that opportunity.

  In November 2002, I asked Noel Francisco, one of the associate counsels on my staff, to prepare a memorandum for me outlining the issues in the Michigan cases. The Supreme Court would decide in January whether to take the cases and hear oral arguments. Before doing so, the court would likely ask whether the administration believed they should determine the constitutionality of the Michigan admission programs.