The confirmation hearings of White House counsel Alberto Gonzales to replace John Ashcroft as attorney general will spotlight long-running disputes within the president's legal team over the conduct of the war on terror. Gonzales's precise position was often a mystery. "When everybody else in the room was arguing, he's sitting there silently," says one former colleague. But Gonzales ultimately signed off on all of the administration's most controversial legal moves--including declaring U.S. citizens "enemy combatants" without permitting them to see lawyers and authorizing unorthodox interrogation techniques that critics say set the stage for the Abu Ghraib scandal.
One legal issue that worried Gonzales from the start, sources tell NEWSWEEK, was that U.S. officials--even those inside the White House--might one day be charged with "war crimes" as a result of some of the new measures. Gonzales first raised the issue in a Jan. 25, 2002, memo to President George W. Bush arguing against granting Geneva Convention protections to Taliban and Qaeda prisoners captured in Afghanistan. He noted that a 1996 U.S. law permitted prosecution for violating Geneva Convention bans on "inhumane treatment." A de-termination by Bush that the Geneva Conventions did not apply to the Afghan prisoners "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" by future "prosecutors and independent counsels" who might view administration actions in a different light, Gonzales wrote. The same concern later prompted Gonzales--at the request of the then CIA Director George Tenet--to seek a memo from the Justice Department's Office of Legal Counsel concluding the president could authorize the use of torture as a wartime interrogation technique (thereby immunizing CIA agents from being charged with violating a federal antitorture law). The disclosure of the Aug. 1, 2002, memo to Gonzales set off a firestorm, and top Justice officials demanded the White House repudiate the far-reaching legal claim. Gonzales later seemed to do that at a White House press briefing. But privately, some associates say, Gonzales was very much involved in the torture memo from the start. "The White House got exactly what it wanted," says one Justice official. Since then, NEWSWEEK has learned, the Justice Department's internal watchdog unit has quietly opened an inquiry into whether the lawyers who sent the memo to Gonzales breached their ethical obligations by seeming to condone torture.
Senate Democrats are expected to press for full disclosures on these and related matters. But privately, even they acknowledge his confirmation is all but assured.