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Gonzales will likely face thorny issues in investigating torture cases

WASHINGTON—Senate Democrats conceded Wednesday that they can't derail the nomination of Alberto Gonzales as attorney general, while raising questions about whether Gonzales could effectively investigate the abuse of terrorist suspects.

As White House counsel, Gonzales advised President Bush on ways to insulate U.S. forces from potential prosecution under anti-torture laws and helped craft policies that pushed the legal limits on coercive interrogation tactics.

Senators from both parties agreed to vote on Gonzales' nomination by Thursday night. Republican leaders predict he'll win confirmation with bipartisan support.

But during Wednesday's debate, several Democrats cited a January 2002 memo in which Gonzales advised Bush to withhold protections guaranteed by the Geneva Conventions from some prisoners "because it substantially reduces the threat of domestic criminal prosecution under the War Crimes Act."

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges," Gonzales wrote.

His legal solution: If Geneva doesn't apply to the detainees, then there'd be no basis to apply anti-torture statutes. In addition, Gonzales said a president could override U.S. laws and authorize torture in a national security emergency.

Such advice, some Democrats contended, means that Gonzales can't be impartial in any investigation of abuse of captives in the war on terror.

Sen. Jack Reed, D-R.I., said Gonzales' "thinking and judgment are just wrong."

"It's not what I am looking for," said Reed, who noted that 12 former admirals and generals oppose Gonzales' nomination because of the torture memos. "Will he really pursue investigations and prosecutions in this area?"

Gonzales has renounced the use of torture and pledged to senators that he would vigorously pursue the prosecution of those who commit torture.

"He promised that he will use his office to prosecute anyone who countenances torture," said Sen. Ken Salazar, D-Colo.

Salazar, the only Hispanic Democrat in the Senate, said he would support Gonzales, who would become the first Hispanic attorney general.

Republicans made much of that fact and warned that Democrats who oppose Gonzales could face a Hispanic backlash.

"This is a breakthrough of incredible magnitude for Hispanic Americans that should not be diluted by partisan politics," said Sen. Mel Martinez, R-Fla., a Cuban-American Republican.

Senate Minority Leader Harry Reid, D-Nev., predicted that at least 25 Democrats would oppose Gonzales over his involvement in interrogation decisions that they say contributed to mistreatment at Abu Ghraib prison, and elsewhere in Iraq, Afghanistan and Guantanamo Bay, Cuba.

Revelations in recent weeks about the use of sexual humiliation by female interrogators in Guantanamo and the slow pace of some military abuse investigations in Iraq have increased calls by human rights groups for an independent investigation.

Gonzales and other administration officials say an independent probe isn't necessary because of ongoing military investigations. In addition, the inspector general's office of the Justice Department is investigating complaints—some from FBI agents—about mistreatment at Guantanamo.

As reports of abuse continue, "some kind of high-powered investigation might be warranted," said Katy Harriger, a Wake Forest University professor and author of two books on the use of special prosecutors.

With the demise of the independent prosecutor statute in 1999, the attorney general has the authority to name a special counsel who'd be accountable to him.

In the case of the leak that exposed CIA agent Valerie Plame, Attorney General John Ashcroft recused himself and Deputy Attorney General James Comey named U.S. Attorney Patrick Fitzgerald as a special counsel.

Gonzales could do the same, said Neal Katyal, a former Department of Justice lawyer in the Clinton administration who wrote the regulations for the appointment of special counsels.

"The attorney general can step outside the career bureaucracy when there is evidence that high-level officials might interfere with an investigation. The memos from Gonzales show the administration has adopted specific policies to stymie prosecutions brought under the War Crimes acts," Katyal said.

"It's wholly appropriate for Gonzales to give guidance on the meaning of criminal statutes, but (those memos) look like a concerted effort to minimize the force of law," added Katyal, who's opposed some of the administration's detention policies.

So far, political pressure hasn't increased enough to force an independent investigation, Harriger said.

Senate Democrats complained that Gonzales evaded or didn't respond to key questions about his role in interrogation decisions, and that even members of previous Republican administrations criticized Gonzales' analysis that some anti-torture laws didn't apply to foreigners held overseas.

But Democrats face a fundamental political reality: Whatever the merits of the White House counsel's judgment and advice, they reflect and support Bush's policies.

Republicans reinforced that point Wednesday, accusing Democrats of refighting an election they'd lost.

"The fact is, there is no difference between Alberto Gonzales and the president on these issues," said Sen. Jeff Sessions, R-Ala.

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(Davies reports for The Miami Herald.)

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(c) 2005, Knight Ridder/Tribune Information Services.

ARCHIVE PHOTOS on KRT Direct (from KRT Photo Service, 202-383-6099): Alberto Gonzales

ARCHIVE GRAPHIC on KRT Direct (from KRT Graphics, 202-383-6064): 20041110 GONZALES bio

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