First, it said that torture means only acts that inflict the kind of pain experienced with death or organ failure. To commit torture, it said, a government official must have the "precise objective" of inflicting severe pain. If causing such harm was not his precise objective - even if he knew "that severe pain would result from his actions" - he should be acquitted.

Second, the memo said that the President has the inherent constitutional power as Commander-in-Chief to override the prohibitions against torture enacted by Congress.

Third, it said that government officials can avoid prosecution for their acts of torture by invoking the defenses of "necessity" or "self-defense" - even though the Convention Against Torture, which Congress ratified in 1994, states very clearly that "no exceptional circumstances whatsoever" may be invoked as a justification for torture.

 

• The Bybee Torture Memorandum was written at Mr. Gonzales's request. After its release in August 2002, the memo was official policy on interrogations by the Defense Department and the C.I.A. for two and a half years until it was finally repudiated last month, on the eve of Mr. Gonzales's nomination.
• Yet he refuses to tell us anything about how the Bybee Memorandum was written and why he ordered it. We know from press reports that the C.I.A. asked him for advice on how far the agency could go in interrogating detainees. In July 2002, he held meetings with other Administration officials to discuss how to legally justify certain interrogation methods. He refuses to tell us anything about those meetings.
• We have a torture problem. The F.B.I. says so. The Red Cross says so. The Defense Intelligence Agency says so. The Defense Department says it investigated more than 300 cases of detainee torture, sexual assault, and other abuse.  Additional allegations of abuse are being reported on a daily basis. Yet Mr. Gonzales can't remember any details of how it happened.
• Harold Koh - a leading scholar of international law and Dean of the Yale Law School, who served in both the Reagan and Clinton Administrations - calls the memo "the most clearly legally erroneous opinion" he has ever read. I hope every member of the Committee will take the time to review Harold Koh's testimony.
• He did say, however, that he believed at the time that it was "a good-faith effort" to interpret the Anti-Torture Statute. At the hearing, he told Senator Leahy: "I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the Department."
• Let's be clear: there is no such thing as a "Commander-in-Chief override." It's certainly not in my copy of the Constitution. It appears to be something that Mr. Gonzales and his colleagues have invented.
• Congress has repeatedly passed laws and ratified treaties prohibiting torture and mistreatment of detainees, and the President does not have the power to violate them. When a nominee claims that such an override exists, or suggests that those who commit torture might be able to invoke the defense of "necessity" or "self-defense" notwithstanding Congress' categorical prohibition against such a defense, it sends a message that "anything goes" to our troops and intelligence officers in the field. To allow such extreme claims to become official U.S. policy for two whole years was reckless and, in my view, disqualifying.
• In September, Army investigators told the Armed Services Committee that as many as 100 detainees at Abu Ghraib had been hidden from the Red Cross at the C.I.A.'s direction - and that the C.I.A. had refused requests to cooperate with the military investigation. This disclosure drew outrage from both Democrats and Republicans. Senator McCain said, "The situation with the CIA ghost soldiers is beginning to look like a bad movie . . . This needs to be cleared up rather badly."  Since then, we've learned that Mr. Gonzales has been a major architect of this policy. On March 19, 2004, at his request, the Justice Department provided him with a draft memorandum - the so-called "Goldsmith Memorandum" - to allow the C.I.A. to ship certain persons out of Iraq. Article 49 of the Fourth Geneva Convention specifically states: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive." Violations of Article 49 constitute "grave breaches" of the Convention and therefore qualify as "war crimes" under federal law.
• Finally, the New York Times reported that Mr. Gonzales excluded critical Administration personnel from deliberations on the Administration's plan to establish military tribunals at Guantanamo, a plan that was widely criticized as unjust, unworkable, and unconstitutional. Secretary of State Powell, National Security Advisor Rice, and the head of the Justice Department's Criminal Division, Michael Chertoff, saw the President's Military Order only after it was published in November 2001. Most of the Pentagon's top military lawyers were also kept in the dark. More than three years after the Order's publication, not a single detainee at Guantanamo has been successfully prosecuted. To the contrary, as predicted by officials who have expertise in the field, the military tribunal process there is falling apart.