Clearing the confirmation air

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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."