Rewarding Mr. Gonzales

The New York Times
January 5, 2005

Rewarding Mr. Gonzales

Last week, the Bush administration put another spin on the twisted legal reasoning behind the brutalization of prisoners at military jails, apparently in hopes of smoothing the promotion of Alberto Gonzales, the White House counsel. Mr. Gonzales, who oversaw earlier memos condoning what amounts to torture and scoffed at the Geneva Conventions, is being rewarded with the job of attorney general.

But the document only underscored the poor choice Mr. Bush made when he decided to elevate a man so closely identified with the scandal of Abu Ghraib, the contempt for due process at Guantánamo Bay and the seemingly unending revelations of the abuse of Afghan and Iraqi prisoners by American soldiers. Like Defense Secretary Donald Rumsfeld, the other chief architect of these policies, Mr. Gonzales shamed the nation and endangered American soldiers who may be taken prisoner in the future by condoning the sort of atrocious acts the United States has always condemned.

The Senate Judiciary Committee will question Mr. Gonzales tomorrow, even though the White House has not released documents that are essential to a serious hearing. The committee has an obligation to demand these documents, and to compel Mr. Gonzales to account for administration policies, before giving him the top law-enforcement job.

After Sept. 11, 2001, with Americans intent on punishing those behind the terrorist attacks and preventing another calamity at home, the Bush administration had its lawyers review the legal status of Taliban and Al Qaeda prisoners, with an eye to getting around the Geneva Conventions, other international accords and United States law on the treatment of prisoners.

Mr. Gonzales was the center of this effort. On Jan. 25, 2002, he sent Mr. Bush a letter assuring him that the war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." That August, Mr. Gonzales got a legal opinion from Jay Bybee, then the assistant attorney general, arguing that the president could suspend the Geneva Conventions at will and that some forms of torture "may be justified." Mr. Rumsfeld's lawyers produced documents justifying the abuse of prisoners sent from Afghanistan to Guantánamo Bay. Mr. Gonzales approved those memos or didn't object. We don't know which because the White House won't release the documents.

On Thursday, more than eight months after the rotten fruits of those legal briefs were shown to the world at Abu Ghraib, the Justice Department issued yet another legal opinion. This time it rejected Mr. Bybee's bizarre notions that the president could be given the legal go-ahead to authorize torture, simply by defining the word so narrowly as to exclude almost anything short of mortal injury. We were glad to see that turnaround, although it was three years too late. Prisoners have already been systematically hurt, degraded, tortured and even killed. The nation's international reputation is deeply scarred.

The new memo said that "torture is abhorrent," but it raised more questions than it answered, like this one: If Mr. Bybee's views were so obviously outlandish, why were they allowed to stand for so long?

And the new memo still goes beyond the limits of American values and international conventions. The administration now recognizes that the anti-torture accord forbids the deliberate use of severe physical or mental pain and suffering to compel a prisoner to divulge information or cooperate in some other way - but it continues to draw fine lines about what that means.

For instance, the Geneva Conventions say that it is torture when a prisoner suffers mentally from the use of mind-altering drugs or the threat of imminent death. But the administration's lawyers have decided that temporary trauma doesn't count, and that mental suffering is real only if it lasts for years. More than once, American soldiers have taken an Iraqi teenager and compelled him to dig his grave, then forced him to kneel, put a gun to his head and pulled the trigger in a mock execution. Is that not torture unless he's still upset about it in five years?

Even if the new memo could somehow magically sweep away all these deeply troubling aspects of the Gonzales nomination, there are other big questions about his background. As White House counsel, he recently oversaw the feckless vetting of Bernard Kerik as the nominee for secretary of homeland security. He was a primary agent behind unacceptably restrictive secrecy policies, the proposed constitutional amendment banning gay marriage and the excessive authority to abuse civil liberties granted by the Patriot Act. In Texas, as Governor Bush's legal adviser, Mr. Gonzales wrote briefs on condemned prisoners' appeals for clemency that were notoriously sloppy.

Republicans expect an easy confirmation, given their Senate majority. But at the very least, Mr. Gonzales should account for his actions. He should unequivocally renounce torture, without any fine-print haggling, as well as the other illegal treatment of prisoners in military jails. And he should explain how he will use his new job to clean up the mess he helped create.