The tortured life of a Republican senator

By Tim Grieve
Published February 1, 2005 10:46PM (EST)

Poor John Cornyn.

The Texas Republican just left the Senate floor, where he explained that he's sick and tired of hearing the "same old tired arguments being brought up, time and time again" by his Democratic colleagues. Those would be the arguments about Alberto Gonzales, the arguments about whether a man who solicited -- and signed off on -- a 2002 legal memorandum that defined away the meaning of "torture" should become the nation's next attorney general.

Cornyn has heard it all before, and he's so totally not impressed. He wants to set the record straight, and he used his time on the Senate floor to do just that

First off, Cornyn wants everyone to know that Gonzales didn't write the memo that defined torture so narrowly that virtually nothing meets the definition. And Cornyn's right about that. The memo was written by Jay Bybee, a Justice Department lawyer that Bush subsequently appointed to the federal bench. But Gonzales solicited the memo; Gonzales has acknowledged that his office had extensive discussions with the Justice Department during the drafting of the memo; and Gonzales has said that he agreed with the memo's conclusions at the time it was written.

Second, Cornyn wants everyone to know that Gonzales didn't write the law that the memo was interpreting. Fair enough, he didn't. But he agreed with the interpretation of the law as set forth in the torture memo, and Cornyn thinks that interpretation was right. What Cornyn didn't mention: On the eve of Gonzales' confirmation hearings, the Justice Department repudiated the memo and the narrow definition or torture set forth in it. So while Cornyn may think that Gonzales was right about torture, the Justice Department now says that it disagrees.

Third, Cornyn wants everyone to know that the Democrats have things completely backward. If the Pentagon and the White House and Alberto Gonzales had "so little regard for the law and basic human norms like the treatment of detainees," Cornyn asks, "why in the world would they go though all this trouble" to interpret the law on torture? Cornyn said that the 2002 memo is proof that the White House wanted to comply with the law, not find a way around it. But on this point, the memo itself provides the best evidence to the contrary; it suggests legal arguments that could be made to "eliminate any criminal liability" for violating the torture law. That doesn't sound like the advice someone requests when trying to comply with the law; it sounds more like the advice you'd need if you were thinking about breaking it.

"Maybe it's a sign of the times that even military commanders, the secretary of defense, and other high-ranking government officials don't make a move without consulting their lawyers," Cornyn says. Maybe that's right. But if those high-ranking government officials weren't dancing so close to the edge of the law, then maybe they wouldn't be so anxious to know about the defenses to a possible prosecution.

The senator finds it all so sad. He thought there would be a "new beginning" when the new Congress came to Washington, and he says that the Democrats' opposition to Alberto Gonzales "does not bode well" for that. Cornyn is especially worried about the president's judicial nominees. As part of Cornyn's "new beginning," Bush has re-nominated 16 extremist judges the Democrats blocked previously. As part of Cornyn's "new beginning," he figured the Democrats would respond by embracing the judges they once opposed. "But here again," sad John says, "I think we have seen an unfortunate continuation of the tactics and the bad habits that our opponents in this debate have lapsed into, and perhaps the know no other way to proceed than through obstruction and mischaracterization."

Like his uniting-not-dividing president, Cornyn is trying so hard to extend the olive branch to those who don't agree with him. He's mystified why the Democrats -- the ones he calls members of a "political insurgency" -- won't reach out and take it.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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