DESPITE A POOR performance at his confirmation hearing, Alberto R. Gonzales appears almost certain to be confirmed by the Senate as attorney general. Senators of both parties declared themselves dissatisfied with Mr. Gonzales's lack of responsiveness to questions about his judgments as White House counsel on the detention of foreign prisoners. Some expressed dismay at his reluctance to state that it is illegal for American personnel to use torture, or for the president to order it. A number of senators clearly believe, as we do, that Mr. Gonzales bears partial responsibility for decisions that have led to shocking, systematic and ongoing violations of human rights by the United States. Most apparently intend to vote for him anyway. At a time when nominees for the Cabinet can be disqualified because of their failure to pay taxes on a nanny's salary, this reluctance to hold Mr. Gonzales accountable is shameful. He does not deserve to be confirmed as attorney general.
We make this judgment bearing in mind the president's prerogative to choose his own cabinet, a privilege to which we deferred four years ago when President Bush nominated John D. Ashcroft to lead the Justice Department. In some important respects, Mr. Gonzales is a more attractive figure than Mr. Ashcroft. His personal story as a Hispanic American is inspiring, and he appears less ideological and confrontational than the outgoing attorney general. Mr. Gonzales is also not the only official implicated in the torture and abuse of detainees. Other senior officials played a larger role in formulating and implementing the policies, and Mr. Bush is ultimately responsible for them. It is nevertheless indisputable that Mr. Gonzales oversaw and approved a decision to disregard the Geneva Conventions for detainees from Afghanistan; that he endorsed interrogation methods that military and FBI professionals regarded as illegal and improper; and that he supported the indefinite detention of both foreigners and Americans without due process. To confirm such an official as attorney general is to ratify decisions that are at odds with fundamental American values.
Mr. Gonzales's defenders argue that his position on the Geneva Conventions amounted to a judgment that captured members of al Qaeda did not deserve official status as prisoners of war. If that had been his recommendation, then the United States never would have suffered the enormous damage to its global prestige caused by the detention of foreigners at the Guantanamo Bay prison. In fact, the White House counsel endorsed the view that the hundreds of combatants rounded up by U.S. and allied forces in Afghanistan, who included members of the Taliban army, foreign volunteers and a few innocent bystanders, as well as al Qaeda militants, could be collectively and indiscriminately denied Geneva protections without the individual hearings that the treaty provides for. That judgment, which has been ruled illegal by a federal court, resulted in hundreds of detainees being held for two years without any legal process. In addition to blackening the reputation of the United States, the policy opened the way to last year's decision by the Supreme Court, which ruled that the prisoners were entitled to appeal their detentions in federal courts. The court also ruled that an American citizen could not be detained and held as an "enemy combatant" without court review or the right to counsel, invalidating Mr. Gonzales's position in the cases of Yaser Esam Hamdi and Jose Padilla.
Mr. Gonzales made a second bad judgment about the Geneva Conventions: that their restrictions on interrogations were "obsolete." Quite apart from the question of POW status for detainees, this determination invalidated the Army's doctrine for questioning enemy prisoners, which is based on the Geneva Conventions and had proved its worth over decades. Mr. Gonzales ignored the many professional experts, ranging from the Army's own legal corps to Secretary of State Colin L. Powell, who told him that existing interrogation practices were effective and that setting them aside would open the way to abuses and invite retaliation against Americans. Instead, during meetings in his office from which these professionals were excluded, he supported the use of such methods as "waterboarding," which causes an excruciating sensation of drowning. Though initially approved for use by the CIA against al Qaeda, illegal techniques such as these quickly were picked up by military interrogators at Guantanamo and later in Afghanistan and Iraq. Several official investigations have confirmed that in the absence of a clear doctrine -- the standing one having been declared "obsolete" -- U.S. personnel across the world felt empowered to use methods that most lawyers, and almost all the democratic world, regard as torture.
Mr. Gonzales stated for the record at his hearing that he opposes torture. Yet he made no effort to separate himself from legal judgments that narrowed torture's definition so much as to authorize such methods as waterboarding for use by the CIA abroad. Despite the revision of a Justice Department memo on torture, he and the administration he represents continue to regard those practices as legal and continue to condone slightly milder abuse, such as prolonged sensory deprivation and the use of dogs, for Guantanamo. As Mr. Gonzales confirmed at his hearing, U.S. obligations under an anti-torture convention mean that the methods at Guantanamo must be allowable under the Fifth, Eighth and 14th amendments of the U.S. Constitution. According to the logic of the attorney general nominee, federal authorities could deprive American citizens of sleep, isolate them in cold cells while bombarding them with unpleasant noises and interrogate them 20 hours a day while the prisoners were naked and hooded, all without violating the Constitution. Senators who vote to ratify Mr. Gonzales's nomination will bear the responsibility of ratifying such views as legitimate.