- The Washington Times - Monday, January 3, 2005

The Justice Department’s revised policy on the treatment of enemy prisoners raises thorny new questions for the confirmation hearings this week of White House chief counsel Alberto Gonzales, President Bush’s nominee to be the next attorney general.

“I welcome the administration’s reversal on this and hope it represents a true rejection of the White House’s ill-conceived effort to contort the definition of torture that was secretly issued two years ago,” said Sen. Patrick J. Leahy, Vermont Democrat and ranking member of the Senate Judiciary Committee. “There is much to answer for.”

While Mr. Gonzales’ confirmation still seems likely, the revised policy gives Democrats more ammunition to grill Mr. Gonzales — and by extension the White House — over the prisoner-abuse scandal.

Specifically, Democrats say Mr. Gonzales and other White House officials wrote legal memos about the status of enemy fighters captured in Afghanistan and Iraq that created an atmosphere condoning torture.

On Thursday, the Justice Department released a new memo outlining the government’s position on torture, aimed at clarifying earlier government memos criticized by some for not taking a hard enough stance against the mistreatment of prisoners.

Coming on the eve of Mr. Gonzales’ confirmation hearing Thursday before the Senate Judiciary Committee, the new memo seems to have only encouraged critics of Mr. Gonzales and the government’s policies toward enemy prisoners.

Anthony D. Romero, executive director of the American Civil Liberties Union, said the memo “is certainly an improvement over the government’s previous policies, but the new memo only serves to highlight just how wrong the Bush administration’s past policies were.”

“The new memo raises more questions about Mr. Gonzales than it answers,” he added.

The Bush administration says the new memo, written by its acting chief counsel Daniel Levin, is not a change in policy and that the government has never granted any official approval for torture or abuse.

But the new memo does directly contradict an August 2002 memo sent to Mr. Gonzales by stating that the definition of “torture” is broader that just pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

In addition to defining “torture” as suffering “even if it does not involve severe physical pain,” the new memo opens by stating that, “Torture is abhorrent both to American law and values and to international law.”

Apparently unchanged is the administration’s position that the detainees from the Iraq war be held as illegal combatants — rather than prisoners of war. Such a classification means the detainee is not protected by the rules of the Geneva Conventions.

Mr. Leahy said the new memorandum “sidesteps two significant sections of the original policy that claimed the president had the power to override our torture laws and immunize from prosecution anyone who commits torture under his order.”

White House spokesman Scott McClellan yesterday defended the policy.

“We have a responsibility to protect the American people, and that includes preventing enemy combatants from returning to the battlefield or rejoining the fight once they have been captured,” he said. “We also expect those detainees to be treated humanely and in accordance with our laws.”

Several human rights groups have sought to turn the Gonzales nomination into a referendum on abuses of detainees and the Bush administration’s role in them.

More than two dozen groups have challenged the Judiciary Committee to scrutinize Mr. Gonzales’ “record, his positions and his future plans for the Justice Department.”

Several retired military leaders this week joined the growing list of persons and groups calling on the committee to “closely scrutinize” the Gonzales nomination.

In a letter, they urged the panel to examine Mr. Gonzales’ role in setting U.S. policy on torture, saying they were concerned about his recommendation that the Geneva Conventions not be applied to the conflict in Afghanistan.

The letter was signed by several former generals and admirals, including Marine Corps Gen. Joseph Hoar, former commander of U.S. Central Command who led the efforts to enforce the naval embargo in the Persian Gulf and the no-fly zone in the south of Iraq after the first Gulf war; Army Gen. James Cullen, who last served as the chief judge of the U.S. Army Court of Criminal Appeals; and Rear Adm. John Hutson, who served as the Navy’s judge advocate general from 1997 to 2000.

While Mr. Gonzales is likely to be confirmed, several congressional sources said the nomination challenge was part of an effort by his critics to establish a record that could deny him appointment to the Supreme Court if a vacancy occurs in the next four years.

Mr. Gonzales has often been mentioned as a potential Bush nominee to the high court.

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