"Senator, that I don't recall remembering." With those six words uttered during the furor over his purge of U.S. prosecutors, former Attorney General Alberto Gonzales likely etched his epitaph. But as it turns out, "hypothetical" may be the most important word Gonzales ever spoke to Congress. New revelations this week suggest that in the spring of 2002 then-White House Counsel Gonzales personally approved the use of waterboarding, months before the Justice Department's infamous Bybee memo blessed the practice. By labeling such questions "hypothetical" during his 2005 confirmation hearings, Attorney General Gonzales may well have committed perjury.
As NPR reported this week, Gonzales apparently played a central role in authorizing the use of so-called enhanced interrogation techniques months before the August 2002 Bybee memo defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In April and May 2002, it was White House Counsel Alberto Gonzales who gave CIA interrogation contractor James Mitchell the greenlight to waterboard detainee Abu Zubaydah:
One source with knowledge of Zubaydah's interrogations agreed to describe the legal guidance process, on the condition of anonymity.
The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA's counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration's legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.
But that's not what Gonzales told the Senate Judiciary Committee during his January 2005 confirmation as Attorney General.
As the Washington Post detailed on January 4th, 2005, a partial picture had emerged regarding Gonzales' key role in helping set the Bush administration's policy towards terror detainees. (It was his January 25, 2002 memo which put enemy combatants outside the scope of the protections of the Geneva Conventions. It declared the war on terror a "new paradigm" which "renders obsolete Geneva's strict limitations on questioning of enemy prisoners.") While the Committee knew of the Bybee memo, which had been withdrawn in 2004, its members and the public alike had not yet learned of the secret Bradbury memos which in May 2005 authorized new combinations of interrogation techniques. (It was those documents authored by Steven Bradbury while at the DOJ's Office of Legal Counsel which the Obama administration recently released.)
It was with that backdrop that Senator Russ Feingold (D-WI) on January 6, 2005 asked Gonzales (video here) whether he agreed with the Bybee memo's conclusion that "the president, as commander in chief, may authorize interrogations, that violate the criminal laws prohibiting torture and that the Congress may not constitutionally outlaw such activity when it's authorized by the president." Noting that "The December 30 rewrite of the August memorandum does not repudiate this view; It simply says the issue is irrelevant because the president has prohibited torture," Feingold continued:
FEINGOLD: The question here is: What is your view regarding the president's constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting as commander in chief? Does he have such authority?
The question you have been asked is not about a hypothetical statute in the future that the president might think is unconstitutional; it's about our laws and international treaty obligations concerning torture.
The torture memo answered that question in the affirmative. And my colleagues and I would like your answer on that today...
GONZALES: Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes.
So it's been rejected by the executive branch. I categorically reject it.
And in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture.
And so what we're really discussing is a hypothetical situation that [...]
FEINGOLD: Does he have that power?
GONZALES: Senator, in my judgment, you phrase it as sort of a hypothetical situation. I would have to know what is the national interest that the president may have to consider [...]
FEINGOLD: I recognized and I tried to make that distinction, Judge, between electing not to enforce as opposed to affirmatively telling people they can do certain things in contravention of the law.
GONZALES: Senator, this president is not -- it's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.
Of course, there was nothing hypothetical about the situation. The Bush administration had approved techniques including waterboarding and the "confinement box" going back to the spring of 2002. As for authorizing "actions that would be in contravention of our criminal statutes," Americans learned this week that is precisely what White House Counsel Gonzales had done.
As NPR's Ari Shapiro noted this week, "Gonzales did not respond to a request for comment through his lawyer." But in a May 3rd interview with Dan Abrams, Gonzales continued to suggest that brutal tactics like waterboarding while downplaying his own critical role in giving them the Bush administration's blessing:
ABRAMS: Judge Gonzales, I'm going to ask you a very direct question. And it relates to something you just said. Do you believe waterboarding is torture?
GONZALES: Here's what I'll say. I think that the U.S. government provided advice to CIA interrogators based upon the best legal reasoning by the lawyers in the Department of Justice. Was it torture, when that advice was given? No. Were the interrogations harsh? Yes. Did they save lives? Absolutely.
ABRAMS: Did they get it right? I'm asking your legal opinion. Waterboarding is--they define it in all the memos how waterboarding is defined--and if we need it defined I'm happy to read from it--how torture is defined. Do you think legally that waterboarding is torture?
GONZALES: Dan, when I served in the administration, the position of the administration was that under certain conditions and circumstances, this technique would be lawful.
As one former government official familiar with the discussions told NPR's Shapiro, "I can't believe the CIA would have settled for a piece of paper from the counsel to the president," adding, "If that were true, then the whole legal and policy review process from April through August  would have been a complete charade."
And that would make Alberto Gonzales' January 2005 testimony to Congress perjury.