American Morning

Good morning, Cliff.

CLIFF MAY, FMR. RNC COMMUNICATIONS DIRECTOR: Good morning, Bill. Good morning to you.

HEMMER: Easy question, Cliff. Are you an attorney?

MAY: I am not.

HEMMER: You’re not. OK. I’m going to start with Julian then on this whole matter. Legally, what does Gonzales have to explain if military officials have concerns about his interpretation of torture from two years ago?

EPSTEIN: Well, they’re really raising two general sets of concerns. One is Mr. Gonzales’ involvement in supervising and approving memos which basically condoned the use of torture and which condoned the administration’s position, which is that there shouldn’t be judicial supervision over indefinite detentions.

Both of these positions seem to be well outside the mainstream and contrary to maybe 50 years of our Western legal experience and what we’ve expected as basic norms.

So I think that, combined with other questions about Mr. Gonzales, he was viewed by many on the 9/11 Commission as being somewhat obstructionist when they wanted to get information about the administration’s pre-9/11 intelligence failures. His inability or lack of skill, really, in vetting the nomination of Bernard Kerik to the director of Homeland Security has raised a lot of questions in people’s minds about whether this guy is, (1), outside the legal mainstream, and, (2), whether he’s really the best guy for the job or more of more of a product of (UNINTELLIGIBLE).

HEMMER: Let’s try and get Cliff to answer some of this. Does this stand in his way, Cliff?

MAY: Well, there’s obviously opposition to him. And I’m afraid a lot of the opposition is very, very partisan, and I think it’s regrettable. This is the first time ever a Hispanic has been proposed for attorney general. He has been the president’s lawyer. The president knows him well. That’s what it means. He’s been an attorney in the White House. He comes from a poor Mexican-American family.

I think it’s really unfortunate that they’re going to — that this attitude is being taken to him, and these kind of things are being said about him.

Look, I think we should have a debate about how we treat al Qaeda and other terrorists that we capture. Do we give them prison-of-war privileges, which means taxpayers pay them money every month? Do they get cooking utensils and musical instruments? Or do we treat them to a different standard?

What Gonzales was asked to do was to look at the legal parameters and give his best advice on what the law allows and the law doesn’t allow. And this is being twisted in a very terrible way, and I think it’s really wrong.

EPSTEIN: This is incorrect. Prisoner of war status goes to what are considered armed combatants. This is provided for under the Geneva protocols. I’ve, in fact, published on this, and I’ve said that I don’t think terrorists get the entitlements of armed combatants and that they don’t get that kind of protection. So we agree on that.

What we’re talk about here is something totally different. What we’re talking about here is Mr. Gonzales improving legal positions of the administration that contravene 50 years of experience, international law and domestic law, which governs some basic principles.

One is that you don’t commit torture. You don’t engage in torture against armed combatants. Or even if they are war criminals, you still don’t engage in torture. And that there are some judicial checks about when it comes to indefinite detentions. These are positions that are widely agreed upon inside the legal community, positions which Mr. Gonzales seems to have a different point of view.

HEMMER: All right, I understand your point, Cliff.

MAY: You know what?

HEMMER: Cliff, go ahead and respond to that.

MAY: When he is up for his confirmation hearings, you can ask him about that. But Gonzales is no more in favor of torture than you are or I am.

The question is: What constitutes torture? If you put me in a room alone with Michael Moore for 24 hours, I might think it’s torture, but somebody else might not.

The question is: What can you do within interrogation? Again, prisoner-of-war status means you ask only name, rank and serial number. I think can you do more than that when you’ve got a terrorist who has important information. Not torture, but what is called stress and duress. This is an important issue. It shouldn’t be reduced to this kind of partisanship. Ask the guy what he thinks. By the way, he’ll be attorney general. He’ll obey the laws of the land.

HEMMER: All right.

MAY: Congress can make any laws it wants.

HEMMER: The hearing will start tomorrow. We’ll follow it then. Thanks, Cliff. Thanks, Julian.

MAY: Thank you.

EPSTEIN: Thank you, Bill.