He’s Not Ashcroft

Eight months after the dehumanizing pictures of torture at Abu Ghraib prison in Iraq, Americans know that this scandalous work was not that merely of a few rogue and overwhelmed soldiers, and was not made up of a couple of isolated instances. Traced back through Afghanistan to Guantanamo Bay to Washington, D.C., the trail to what remains an affront to human rights and a damaging blow to the United States’ reputation begins in the Department of Justice and with the office of the president’s legal counsel, Alberto R. Gonzales.

Judge Gonzales may not have anticipated the outcome the entire world has seen – he told members of the Senate yesterday that he regretted it – he may not have understood that his support for the DoJ opinion helped provide rallying evidence for Middle East terrorists, but that is the result of the memo he defended to the president against the advice of the military and the State Department.

The Supreme Court last June disagreed with part of the administration’s conclusions, rejecting indefinite detention of the prisoners, and a federal court in Washington last year ruled that the prisoners were entitled to prisoner-of-war status and protections. The secrecy of the military operations prevents the public from knowing whether the Office of Legal Counsel’s recent rethinking of the definition of torture – previously limited to “injury such as death, organ failure or serious impairment of body functions,” in the memo’s opinion – has effectively stopped the mistreatment. But there is no question that a great deal of damage has been done.

The Senate must decide whether it agrees with President Bush that Judge Gonzales would make an able attorney general. That is, it must vote on whether a lawyer and former judge who failed to anticipate the effect of his opinion in this important instance is suitable to be the nation’s top law-enforcement officer. The offices of Sens. Olympia Snowe and Susan Collins do not yet have public positions on the issue; Democrats on the Judiciary Committee seem grudgingly willing to vote for him, though they will meet again before deciding.

The strongest case in Judge Gonzales’ favor, besides his compelling personal story and his decency, is that much of the information about his role in creating the “torture memo” was known before the election and the nation re-elected the person ultimately responsible for it, President Bush. Presidents largely have been able to choose whom they would like in their cabinets. The case is different for lifetime judicial appointments, but appointees who serve at the pleasure of only the sitting president should be given wide latitude for confirmation. Sometimes, the duty of the Senate to offer advice and consent is nothing more than an opportunity for the opposing party to grumble before acquiescing.

At the Senate hearing yesterday, Sen. Charles Schumer, a Democrat from New York, noted that Judge Gonzales had consulted with him on choices for federal judgeships in New York and, as a result, every position was filled without acrimony. The senator pointed out that he did not personally agree with the legal philosophies of those judges, but the consultation kept them in the mainstream.

That is the position Democrats find themselves in with Judge Gonzales. His record, dating back to his service to Gov. Bush, is not one they would agree with, but despite this, he is in the mainstream. This is another way of saying he will understandably be supported because he’s not John Ashcroft.