Clearing the confirmation air

Two things, and perhaps only two things, are clear at this point in the process of confirming Alberto Gonzales as the next U.S. attorney general:

(1) Barring some highly unlikely scandal, like an illegal nanny hiding in his basement, he will be confirmed.

(2) If high office were determined solely on the basis of personal character, he will deserve to be confirmed.

Who wouldn't root for Alberto Gonzales? He has lived the American dream, rising from humble circumstances to high office. His is a heartening success story.

Yes, he did write a memo explaining the difference between prisoners of war and unlawful combatants. His critics may disagree with the distinction he drew, but it has been long recognized by the Geneva Convention and the laws of war.

It's also a distinction the American people will recognize instinctively: They know the difference between a terrorist and a lawful combatant. Mr. Gonzales' memo on the subject will not prevent his confirmation and might even hasten it.

An enemy who wears no identifiable uniform, strikes indiscriminately, kills innocent civilians, represents no accountable government, and in no other way obeys the internationally recognized laws of war has forfeited the protection usually afforded prisoners of war.

But there is another memo floating around out there. It was put out by the Justice Department in August 2002. And while it recognizes a federal law against torture, it concludes the president's authority as commander-in-chief trumps it. ( "3. Legal doctrines could render specific conduct, otherwise criminal, not unlawful. See discussion of Commander-in-Chief Authority, supra.")

It's clear from the memorandum's chilling, bloodless prose that the question of torture was only an abstract legal, not an intense moral, problem for the Justice Department's lawyers. Here was another assignment to complete by deadline, to stamp, file and send on. It's not as if those who drew it up in their clean, well-lighted offices, could hear the screams.

And so American officials wound up dutifully citing much the same arguments made at the Nuremberg Trials a half-century ago -- by the defense. And they concluded mere law cannot challenge the exercise of command in war. In short, orders are orders. Although the doctrine sounds more authoritative in the original German: "Befehl ist Befehl."

The Justice lawyers expressed the same idea at great length and in American terminology: This was a separation-of-powers question, they found, and the laws against torture needn't concern the president and commander in chief. ("In light of the complete authority over the conduct of war, without a clearer statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas.") In short, the leader knows best. Call it the Fuehrerprinzip.

Let it be noted Alberto Gonzales was White House counsel, not an official in the Justice Department. He did not write this memo even if he may have solicited or consulted it. It does not bear his initials or his imprimatur, just his fingerprints. He only read it and passed it on.

It's not what Alberto Gonzales did about the Justice Department's memo that disturbs, but what he didn't. He asked no questions about a scholarly opinion explaining in great detail how and why and when the Constitution and laws of the United States permit torture. It's not what's in his record that disturbs but what's missing:

Where was Alberto Gonzales' reaction?

It's one thing to ask the usual cadre of lawheads to play devil's advocates; it's another not to raise a single objection when the devil submits a memorandum Kurt Waldheim could initial.

The memo set off alarm bells in the State Department and among the Joint Chiefs of Staff. And for good reason. Legal counsel there realized a memo justifying the torture of others could be used just as readily, mutatis mutandis, to justify the torture of American prisoners.

Not that our enemies care much for legal niceties, but that doesn't mean we shouldn't. And Alberto Gonzales didn't. Where was his conscience?

The attorney general of the United States occupies a peculiar position among Cabinet offices. He serves at the pleasure of the president. Yet he must serve not only the president but the law, and not just its letter but its spirit. This memo should have roused something in Mr. Gonzales' own spirit. It didn't.

Once nominated for attorney general, Judge Gonzales seems to have developed some scruples about torture. Now he vows that neither he nor this administration will condone it. His consciousness has been raised. If these hearings accomplish nothing else, they will have been worthwhile.

Paul Greenberg is a nationally syndicated columnist.