January 18, 2005,
Terrorists received good news and bad news last week. According to USA Today, most Americans (69 percent) oppose torturing war-on-terror detainees by exposing them to dogs. Unfortunately, an equivalent number (65 percent) say it's okay to assassinate known terrorists. These poll results likely mirror our own perplexity.
The ugly, abusive behavior of Abu Ghraib is inexcusable, counterproductive, and well below the American character. Hence the ready conviction of Spc. Charles A. Graner Jr., whose court martial established gross and indecent abuse for sport, unrelated to the acquisition of intelligence. And yet we have to come to grips with the necessity of subduing fanatical outlaws who show little respect for human life and seem well inured to any interrogation method that lacks some element of anxiety or fear.
While some of those commenting on the poll suggest that it reveals that the public and the Bush administration are at odds, in truth it helpfully documents the nuances and gaps in conventional thinking with which Bush, and all of us, have had to wrestle. These anomalies are increasingly revealed not just on the battlefield, but in litigation and legislative hearings as well, in keeping with modern American practice.
No one should begrudge the need for the president to explain his actions in these forums. Most are appropriate aspects of the checks and balances that are protective of freedom. But to be useful, legislative oversight and judicial review must be premised on careful analysis of actual facts and law, and not merely polemical exercises where long-winded questions leave little time for thoughtful answers.
Take, for example, the ongoing confirmation inquiry into the suitability of Alberto Gonzales for the post of attorney general. There was a good deal of rhetorical invective lobbed in Judge Gonzales's direction for a Department of Justice memorandum he requested but didn't write on the definition of torture under international and domestic law. It was generally not clear what was gained by this exercise other than the scoring of political points.
The hearing thankfully was not all posturing. Senator Lindsey Graham dissented from the Justice memo, and one senator in particular, John Cornyn of Texas, came prepared for substantive work specifically, better ascertaining what was permitted under law to gain information from captured detainees. Cornyn directed his attention to something Judge Gonzales actually did write as the president's lawyer: namely, that terrorists are not entitled to be treated as POWs under the Geneva Convention.
From the get-go, Cornyn's questioning debunked the conflation of the issue of Geneva's applicability with the Iraq and GTMO prison abuses. Under law, torture is independently prohibited and the president has denounced it from the beginning. Judge Gonzales has never written anything to the contrary, and he forthrightly encouraged examining any involvement of FBI staff in either observing or participating in the alleged abuses. Late last week, the inspector general of DOJ acknowledged that such review is underway.
The Geneva Convention exists not simply as a convenient political banner by which to chastise the president's handling of the war but also as a law with its own defined meaning. Misreading Geneva for partisan purposes may seem inconsequential until it is realized that doing so may deny the reasonable on-going interrogation of terrorists and our only practical way of avoiding a subsequent terror attack.
Expert lawyers know never to assume, and Judge Gonzales started with the sound premise that it could not simply be taken for granted that Geneva ought to apply to terrorists. Al Qaeda does not meet the criteria under the convention of being a regular army. September 11 itself, and more than one barbaric beheading, reveal as much. The radical Islamic terrorists who have declared war on us, fight without military command structure and out of uniform, employ concealed weapons, and disregard the laws and customs of war, by, for example, targeting civilian populations.
Why then did the venerable Colin Powell take issue with Judge Gonzales and argue for Geneva's applicability to the sub-part of the terror war being fought in Afghanistan? To Gonzales, Afghanistan under the oppression of the Taliban was a failed state, wholly lacking in sovereign legitimacy. Since the Constitution puts such determinations exclusively in the hands of the president, it was simply responsible lawyering for Gonzales to rely upon this clarity. Diplomats, however, generally favor nuance over clarity and they did here as well. Powell and company more or less conceded the general exclusion of terrorists but preferred to have each Afghan detainee evaluated for POW status individually.
Now bona fide POWs generally cannot be subjected to interrogation beyond the proverbial name, rank, serial number and birth-date. Powell tried to fudge this by arguing that with or without Geneva, the U.S. would have "the same practical flexibility in how we treat detainees, including with respect to interrogation and length of detention." Textually, it is not clear that Powell is right, but one can appreciate his diplomat's point that by not categorically putting one of the theaters of the war (Afghanistan) outside the scope of Geneva, there would be less basis for our enemy to mistreat our own troops.
The president gave Powell the benefit of the doubt and in his February 7, 2002, directive did not find the Afghan battle to be outside Geneva, though he said he reserved the right to do so. So the popular, liberally abetted narrative that it was Gonzales's aggressive legal advice overruling the wise counseling of the State Department that led to prisoner abuse just doesn't hold up.
With the facts separated from hyperbole, Senator Cornyn turned to the substance of Gonzales's legal thinking. The Democrats arranged for a handful of witnesses to criticize Gonzales, but none of them truly refuted (or even rejected) his legal stance. Indeed, the witnesses a pacifist opposed to the war in Afghanistan altogether and two law deans specializing in international law seemed, by the conclusion of Cornyn's questioning, to have little argument at all. To the senator's principal question, "Did they agree that all lawful means to gather intelligence likely to save American lives should be permitted?," they all answered affirmatively.
By every measure, Harold Koh, the dean of Yale Law School, is one of the academy's most respected internationalists. So it was troubling when, in testimony, he persisted in rebuking Gonzales for finding that the war on terror presents a "new paradigm [that] renders obsolete Geneva's strict limitations on questioning of enemy prisoners." After Cornyn patiently documented that multiple international scholars had refused to apply Geneva to terrorists, that President Reagan had expressly rejected an amendment to the treaty in the 1980s that would have done so, and that multiple courts have since sided with the Gonzales legal conclusion, Dean Koh conceded: "Well, they fall under Geneva, but they are not POWs."
Shortly after that, the dean fell silent. Alberto Gonzales merits the confirmation of the Senate and John Cornyn is a senator well worth watching.
Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He is a former constitutional legal counsel to Presidents Reagan and Bush.