Helen Thomas

WASHINGTON -- President Bush has tapped White House lawyer Alberto Gonzales to be the new attorney general. This is the same man who left a damning paper trail that has been used to justify the mistreatment of detainees and prisoners of war. Gonzales would replace the controversial John Ashcroft, who will go down in the history for undermining civil liberties during his tenure as head of the Justice Department in the aftermath of the 9-11 terrorist attacks.

Ashcroft did not go quietly and instead took a few parting shots at the federal courts for rulings against the Bush administration that he claimed were endangering the war on terrorism.

The 49-year-old Gonzales is a trusted Texas friend of the president’s. He also is the architect of the Bush administration’s legal war on terrorism and the author of shocking memos that described as “quaint” and “obsolete” the limitations on questioning of prisoners under the Geneva conventions.

Bush and Defense Secretary Donald Rumsfeld wanted to make end runs around international law in the treatment of persons suspected of terrorism.

Gonzales obliged by drafting a backup memo on Jan. 25, 2002, that excluded U.S. treatment of al Qaida and Tailban in Afghanistan from the Geneva Convention on Prisoners of War. The war against terrorism “is a new kind of war,” Gonzales wrote. There has to be “the ability to obtain information from captured terrorists and their sponsors in order to avoid further atrocities or war crimes, such as wantonly killing civilians.

“In my judgment,” he added, “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges. . .” Those memos have been interpreted as approving the use of torture in interrogations to meet the need for quick intelligence. He also has tried to justify Bush’s claim that as commander-in-chief he has virtually unlimited powers in the war on terror.

Past treaties hammered out over years seem to mean nothing to this administration. As for the treatment of prisoners, the world has already witnessed the shameful behavior of the American military guards at Abu Gharib prison. The U.S. image as reflected in those painful prison photos was damaged around the world.

On Feb. 7, 2002, Bush signed an executive order on the treatment of detainees and declared that the war against terrorism “ushers in a new paradigm” that “requires new thinking in the law of war.” He went on to conclude that the Geneva Convention didn’t apply to al Qaida or Taliban detainees, though he hastened to add that Americans values “call for us to treat detainees humanely, including those who are not legally entitled to such treatment.”

Looking back, it appears that some U.S. commanders only heard the first part of the order, not the part about humane treatment. Although the signature on the order was that of the commander in chief, it’s pretty obvious from the document’s intensely legal tone that the White House counsel drafted it.

Gonzales will undergo tough interrogation at his Senate confirmation hearings, especially from probing Democrats who will want to know what he was thinking when he wrote those memos and that executive order. Then, the Republican-controlled Senate will approve his nomination.

Slowly but inexorably, the federal courts appear to be catching up with the Bush administration’s legal excesses. For example, courts, including the U.S. Supreme Court, have overruled the administration’s efforts to indefinitely detain enemy combatants at Guantanamo Bay, Cuba, without charges, lawyers or trials.

There has been speculation that Bush would like to put Gonzales on the Supreme Court eventually, making him the first Hispanic to serve on the high bench. Many conservatives think Gonzales is not hard-line enough and fails to pass muster on abortion and affirmative action (they oppose both).

As attorney general, Gonzales will be the nation’s chief law enforcement officer. Unlike Ashcroft some attorneys general in the past have broadened civil liberties and human rights during their Cabinet service. One was Herbert Brownell, the attorney general in the Eisenhower administration, who sent federal marshals to Little Rock, Ark., to enforce school integration and to protect black children entering a previously all-white school.

Then there was Robert Kennedy, who was attorney general under his brother, President Kennedy, and who cracked down on the segregationists in the South during the civil rights protests.

Another profile in courage was Nixon-era Attorney General Elliott Richardson who resigned after refusing to fire special prosecutor Archibald Cox during the Watergate scandal.

But Gonzales is not expected to wander off the reservation when he moves over to Justice. He will play an acceptable role if he understands he should abide by our treaty commitments, respect due process, and enforce the laws on the books.

(c) 2004 Hearst Newspapers