THE SENATE JUDICIARY Committee begins confirmation hearings today for Alberto R. Gonzales, President Bush's choice to head the Justice Department. Mr. Gonzales is in some respects an attractive nominee: His life story is compelling, his views on some issues are comparatively moderate and his calm demeanor would be a reassuring change from that of his predecessor, John D. Ashcroft. Yet senators must scrutinize Mr. Gonzales's record. The man who has served as White House counsel these past four years must not become attorney general without clarifying his role in decisions that helped lead to the prisoner abuse scandal and to restrictions of civil liberties. More broadly, the Senate should ask whether Mr. Gonzales is capable of giving Mr. Bush dispassionate legal advice, rather than -- as he seems to have done so often in the past -- telling the president what he wants to hear.
The concerns about Mr. Gonzales begin with his having urged Mr. Bush to deny that the Geneva Conventions apply in Afghanistan. The "new paradigm" of the war on terrorism, reads a January 2002 draft memorandum written in his name, "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." Mr. Gonzales's aggressive advice was directly counter to that of both the State Department and the military brass. And while Mr. Bush eventually declared that the conventions did apply, he followed Mr. Gonzales's advice not to fully comply with them. Rather, he took the unnecessary step of declaring all detainees "unlawful combatants," and therefore beyond the conventions' protection, without complying with the process international law contemplates for that judgment. This move proved fateful when the headquarters of Lt. Gen. Ricardo S. Sanchez, citing the president's position on "unlawful combatants," approved such interrogation techniques in Iraq as hooding, forcing prisoners into "stress positions" and menacing detainees with dogs.
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Mr. Gonzales commissioned the now-infamous torture memorandum from the Justice Department's Office of Legal Counsel. The memo followed a meeting in his office regarding the interrogation of a key al Qaeda detainee, in which participants discussed such methods as "waterboarding," mock burial and slapping.
Mr. Gonzales played a key role in the formation of military commissions, a system that, three years after detainees began arriving at Guantanamo Bay, Cuba, has yet to produce a single trial. The military commissions are now the subject of litigation, with one judge having already declared them illegal. Last year the Supreme Court rejected other Bush administration policies in the war on terrorism as well: its contention that American citizens like Jose Padilla and Yaser Esam Hamdi could be indefinitely detained without access to attorneys and the notion that Guantanamo could operate without judicial supervision.
Across a range of areas, in short, Mr. Gonzales appears to have given the president legal advice that may have empowered him in the short term -- to lock up people he deemed dangerous, to try detainees using a system untested for decades, even to torture -- but that have a great disservice to the president and the country in the long run. Positions he has advocated have damaged U.S. prestige, courted judicial rebuke and greatly complicated the long-term goal of establishing legal regimes that will stand over the course of a long war.
When Mr. Bush was governor of Texas, Mr. Gonzales as his chief counsel gave him only the most cursory briefings on upcoming executions, omitting important facts and mitigating circumstances, according to a 2003 article in the Atlantic Monthly. Perhaps this was what Mr. Bush wanted. But the attorney general's job is not to give the president what he wants.
Senators should with great care ask Mr. Gonzales to fill in the aspects of his record that are not known and to explain how he justifies those decisions that appear to have harmed the nation. The country needs an attorney general capable and confident enough to stand up for the law and deliver arm's-length legal advice. Before voting to confirm, senators need to satisfy themselves that -- notwithstanding his history -- Mr. Gonzales can and will deliver such advice.
