RAY SUAREZ: Joining us with more on Alberto Gonzales' nomination as attorney general, Bradford Berenson served in the White House counsel's office with Judge Gonzales during President Bush's first term.
He's now in private practice in Washington, and Elisa Massimino is the Washington director of Human Rights First, formerly known as The Lawyers' Committee for Human Rights.
Elisa Massimino, you heard the Attorney General designate questioned very closely on the administration's policies on torture. Did you find his answers sufficient?
ELISA MASSIMINO: Well, he said a lot of good things, Ray, but it's what he didn't say that I found so striking.
He was asked numerous times what his own views were about the original so-called "torture memo," and he evaded those questions, said he didn't recall.
Even when Republican Sen. Lindsey Graham said, "I think that memo was wrong in its entirety and completely wrong in its approach, don't you, Mr. Gonzales," he refused to answer that question.
Likewise, on the question of the so-called commander-in-chief exception to the Constitution that was in the Biden memo, he was asked numerous times to step back from that, to reject that on his personal, in terms of his personal views, and he failed to do it.
In fact, he intimated that he believed the president did have the power to overrule laws passed by Congress.
Now, I learned that in my civics class in high school back in Texas that in this country the president can't just ignore laws that are passed by Congress.
Any law student can tell you that. And his unwillingness to say that unequivocally was really troubling.
RAY SUAREZ: Bradford Berenson, what about the point that Elisa Massimino raised?
BRADFORD BERENSON: Well, let me take them in reverse order. All Judge Gonzales really said about executive power is that the president has the ability in the case of a statute or law passed by Congress that is unconstitutional not to follow it.
He clearly conceded that any statute that is constitutional has to be followed by the president no less than any other American citizen.
So the real question, when you have a separation of powers conflict, whether in the foreign policy or national security arena or another, is whether the law that is in question is constitutional or whether there are provisions in the Constitution that trump it.
ELISA MASSIMINO: Well, the question, though, is when the executive branch believes, as it often does, that a law or a portion of a law that Congress passed is unconstitutional, what does it do?
What Mr. Gonzales was asked quite pointedly today was, "Does the president have the power to authorize people to violate a law that Congress has passed?"
And he refused to reject that theory of presidential power. He refused. And that's extremely troubling. And I think that goes beyond really what you're saying, that he was asserting.
RAY SUAREZ: Let's get Mr. Berenson's response.
BRADFORD BERENSON: Yeah. As I understood Judge Gonzales' testimony on this point, all he was saying is that in appropriate circumstances, after a very, very careful and searching look, if the executive branch concludes that a statute is unconstitutional, it does not have to follow it.
It's not a question of authorizing someone to violate a statute. It's a question of determining that a statute itself is unlawful and should not be followed.
RAY SUAREZ: Before it's been judged to be unconstitutional by the United States Supreme Court?
BRADFORD BERENSON: That's right. In many of these cases either the federal courts won't hear them and decide them; it's just a matter for intra-branch conflict between the political branches.
Or the necessities of the circumstance that raised the question are such that you have no time to litigate and a decision has to be made.
But we're talking about very rare emergency circumstances.
Judge Gonzales acknowledged that these would be very rare circumstances, and that before reaching a conclusion, that any statute passed by Congress and signed by the president was not constitutional in some particular, that he and President Bush would have to take a very, very careful look and be very certain of their ground.
RAY SUAREZ: But what about his handling of the memos with -- that carry his name -- advising the president on both the use of torture and whether enemy prisoners in this particular conflict fall under the Geneva Convention?
BRADFORD BERENSON: Yeah. Let me separate those. It's only the Geneva Convention memorandum that carries Judge Gonzales' name as author.
He was the recipient of the so-called "torture memo." He asked a question of the Department of Justice, sought their legal advice, and they provided it in the memo written to him.
But he asked the question, didn't supply the answer on the meaning of torture.
ELISA MASSIMINO: And there's certainly nothing wrong with asking the question. I don't think anybody disputes that.
But what senators were very curious to know was: what kind of judgment did he exercise in advising the president based on that legal opinion?
He seemed to have difficulty distancing himself personally from that opinion, even now that the office and the Justice Department that produced it has disavowed it, which seems strange to most of the senators who were asking those questions.
RAY SUAREZ: We'll have Mr. Berenson finish his answer.
BRADFORD BERENSON: Yeah. What he conveyed is that the Department of Justice is the department of government charged by statute with interpreting the law for the executive branch.
So Judge Gonzales's personal views as White House counsel about the interpretation of the torture statute or any other as a legal matter don't make much difference.
What makes a difference is the official opinion render bid the Attorney General through the office of legal counsel.
In 2002, its opinion was one thing. And recently its opinion has been changed to walk back somewhat from the opinion rendered in 2002.
But I think what Judge Gonzales was doing was not evading the question but rather making the point that institutionally someone else was responsible for making that judgment, not him.
RAY SUAREZ: And, Ms. Massimino, we heard Judge Gonzales repeatedly defer to the Justice Department.
Is he right it's a matter of law, and is he right as a matter of structure, the way the White House is supposed to work and the executive branch is supposed to work?
ELISA MASSIMINO: Well, I think we have to make sure we look at the context surrounding this. These questions and the memos, the original torture memo was not requested in a vacuum.
What's been reported and what Mr. Gonzales today was unable to refute is that the CIA was interested in ramping up the pressure on al-Qaida suspects that it had in custody, that it wanted to interrogate using measures that it feared might be unlawful, and it's in that context that the memo originally was requested from the Justice Department.
So in order to distance himself from the conclusions in that memo, Mr. Gonzales painted a picture today that I think at the very least indicates a kind of dereliction of duty in his own job, which is different from what his job would be as the Attorney General, but his job in giving advice to the president so that he can formulate legal policy.
I think he failed here in that respect with regard to the torture memo coming out of the Justice Department.
BRADFORD BERENSON: Well, in terms of Judge Gonzales's duty, there's two separate duties.
One is to ascertain what the law is, and he fulfilled that duty. He wasn't in dereliction of it.
He fulfilled it by asking the Department of Justice's official opinion on where the legal line lay and what constituted torture.
He did that precisely so that the CIA and other agencies of the U.S. government would not violate the law and would not cross those lines.
Then there's a second aspect of his duty, and that of other lawyers in the administration, which is to set policy, that is short of that legal line, what interrogation techniques do we want to use, do we find acceptable, understanding that they are legal.
Now, that aspect of the judgment he didn't personally get involved in. The operational agencies, the Department of Defense, primarily did.
ELISA MASSIMINO: But the problem here is that the operative parts of the Biden memo, the torture memo that construe the federal statute banning torture are so outside the bounds of good legal reasoning, as most lawyers I've talked to who have looked at it and law professors, and I think they're still testifying over there right now.
And as Sen. Graham said today, he just finds it so outrageous that anyone would -- it doesn't pass the smell test to say that you've run afoul from the statute banning torture only if you inflict pain, severe physical pain equivalent to organ failure.
Now, we all know that that's now been rejected and is no longer the position of the Bush administration. And that's a good thing.
But the fact that Mr. Gonzales didn't seem to have a judgment or reaction to that construction of the law was very troubling to Republicans and Democrats today.
RAY SUAREZ: Many of the senators, Mr. Berenson, wanted some sign of something more, just as Ms. Massimino seems to indicate, is than just receiving the letter and saying, well, the process has been followed as is laid out by the law.
BRADFORD BERENSON: Well, there was something more. I mean, the process by which a memorandum like that gets produced involves give and take.
It involves, as Judge Gonzales acknowledged today, discussion between the White House and the Department of Justice over the meaning of this statute, an examination of the legal materials.
But the ultimate responsibility for deciding the definition lay with the Department of Justice. So he followed along the reasoning. He tried to review the authorities and precedents that were being relied on.
He presumably asked questions of the lawyers at the Department of Justice, but at the end of the day, it would have been improper for him to direct them to reach any particular conclusion.
All he could do is ask questions, reason with them and then accept their ultimate opinion, which he did.
RAY SUAREZ: Testimony has begun from Judge Gonzales' supporters and detractors. Guest, thank you both.