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Editorial

Mr. Gonzales's Record

Monday, November 22, 2004; Page A18

INVESTIGATIONS have determined that some U.S. interrogators who tortured Iraqi detainees at the Abu Ghraib prison reasonably believed that their actions had been authorized by a memorandum from the headquarters of Lt. Gen. Ricardo S. Sanchez, who approved such techniques as hooding, imposing "stress positions" and using dogs to inspire fear. According to one official report, although those methods clearly violate the Geneva Conventions, they were sanctioned by Gen. Sanchez's legal staff "using reasoning from the president's memorandum of February 7, 2002," which determined that the conventions should be set aside for people deemed "unlawful combatants."

The architect of that presidential memorandum was Alberto R. Gonzales, the White House counsel who now has been nominated by President Bush to serve as attorney general. Like several other senior administration officials, Mr. Gonzales has never accepted responsibility, or been held accountable, for his role in setting administration policies that led to extensive violations of international law -- and U.S. standards of justice -- in Iraq, Afghanistan, and Guantanamo Bay and in other still-secret detention facilities. Mr. Gonzales should not become attorney general without being asked by the Senate to answer for that record.

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The starting point was Mr. Gonzales's recommendation to Mr. Bush that he declare the Geneva Conventions -- whose rules on the questioning of prisoners he derided as "obsolete" -- inapplicable to detainees from Afghanistan. That decision caused enormous damage to U.S. standing even with close allies, yet from a practical point of view was entirely unnecessary. Mr. Gonzales ignored the advice of the administration's most seasoned national security officials, including Secretary of State Colin L. Powell and the chairman of the Joint Chiefs of Staff, who told him it was possible to indefinitely detain and vigorously interrogate al Qaeda members without violating Geneva, and that he risked undermining a U.S. military culture of treating prisoners humanely. That prophecy came true when Gen. Sanchez used Mr. Gonzales's logic to authorize the abuse of prisoners at Abu Ghraib. The position Mr. Gonzales endorsed, that the president could declare that all those captured in Afghanistan were not entitled to Geneva protections, has since been ruled illegal by one federal judge and has led to numerous other judicial complications.

Around the same time Mr. Gonzales convened a working group and pressed it to develop a system of "military commissions" for the detainees that would bypass both federal courts and the military's own justice system. Once again he ignored the military's own legal professionals, who believed the court-martial system was adequate. Once again trust in the United States was seriously eroded, without any useful result. After three years, not a single trial has been completed; instead, the system has been invalidated by one federal judge while the Supreme Court has ruled that all the foreign detainees can challenge their detentions in federal court. The Supreme Court also ruled that the government could not hold a U.S. citizen without court review or the right to counsel -- again invalidating the stance that Mr. Gonzales adopted in the case of terrorism suspects Yaser Esam Hamdi and Jose Padilla.

Within months of Mr. Bush's adoption of the Geneva decision, the CIA was using harsh questioning methods on a senior al Qaeda leader, Abu Zubaida, and asking the White House for legal justification. Mr. Gonzales commissioned a memo from the Justice Department in the summer of 2002 that asserted the president's right to order the torture of detainees and redefined torture itself so that pain short of organ failure, death or permanent psychological damage did not qualify. According to a report in Newsweek magazine, the memo was written after a meeting convened by Mr. Gonzales at which specific torture practices were discussed and approved, including "water-boarding," a technique designed to cause a sensation of drowning.

After the scandal over abuse at Abu Ghraib erupted, Mr. Gonzales tried to distance himself from the torture memo, though what is known indicates that he played a central role in its formulation. Like Mr. Bush and other senior officials, he has ignored the abundant evidence that the decision on the Geneva Conventions led directly to the abuse of detainees in Afghanistan and Iraq. His damaging and erroneous legal positions have been altered only in response to court rulings and then only grudgingly. Senators should ask Mr. Gonzales to explain his definition of torture and to say whether he believes captors in other nations could legally inflict pain short of organ failure on detained Americans. They should also ask why he chose to exclude or disregard the views of the uniformed military legal corps in his consideration of military commissions and the application of the Geneva Conventions. Above all, Mr. Gonzales should answer this question: Why is a lawyer whose opinions have produced such disastrous results for his government -- in their practical application, in their effect on U.S. international standing and in their repeated reversal by U.S. courts -- qualified to serve as attorney general?


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