Rich Lowry gets the Alberto Gonzales nomination fight right:
The confirmation hearings for Al Gonzales’s nomination as attorney general ostensibly are about his suitability for the job. But the real issue is how we conduct the war on terror. Are terrorists soldiers, just like any other? Do we have a right to pressure them for information upon capture? The Democrats’ answers are, by implication, “yes” and “no” respectively. Which is why the Bush administration should welcome a big, high-profile fight over this nomination.
The endless posturing about torture is clearly beside the point. Gonzales was asked for a legal opinion on the scope of the Geneva Conventions, and he gave a sound legal answer. What’s right isn’t always in line with what’s legal, either. See Andrew McCarthy in NRO:
For hours, the confirmation hearing for the Attorney General designate, Alberto Gonzales, was grueling ? for his detractors. The White House Counsel handled often strident questioning with aplomb. But, as strongly as Judge Gonzales held his ground on such matters as the non-applicability of the Geneva Conventions to alien enemy combatants, his critics provided just as strong a justification for his inevitable confirmation. In a word, they were fatuous.
For a good example of a fatuous reaction to Gonzales, see former Mercury News tech columnist Chris Nolan compare Al Qaeda to the American civil rights movement. No, I’m not kidding, she really does. Good thing for her she doesn’t allow comments on her blog.
Ho hum.
Gonzales was the guy who vetted Bernard Kerik, or should have.
But Lowry’s wrong. The torture crap doesn’t work, hasn’t worked, and has only pissed people off in the world.
I don’t read Nolan’s comments as comparing Al Qaeda to the civil rights movement. She says simply that the administration is demonizing Arabs and others in a manner similar to the way blacks were demonized to justify depriving them of rights. A point she makes that is worth considering is that regardless of the actions of Iraqi insurgents or Al Qaeda terrorists, they remain human beings with certain rights. Holan says – and I agree with her – that the value of the Geneva Conventions are that they demonstrate that it is possible, and preferable, to treat even our enemies with fairness and humanity regardless of the heinous nature of their actions. If that is not one of the values we are supposedly fighting to preserve, then what does distinguish us from them (and no, I am not arguing a moral equivalence between the US and al Qeada, I am simply saying that the “way of life”, “values” and “freedom” that we are supposed to be defending include fairness and humanity.)
The Geneva Convention is an agreement between signatories to behave a certain way in war, not a unilateral suicide pact. Al Qaeda and the other terror groups weren’t fighting haven’t signed it, therefore we have no legal obligation to follow it with respect to our treatment of Al Qaeda fighers.
That’s the simple legal truth, and all you can expect your lawyer to tell you about it.
There are situations in which torture works; it wouldn’t be so popular if this weren’t so.
Torture is “popular” for the same reason the death penalty is: many folks enjoy hurting other people, especially if those being hurt can’t resist.
No, it’s not that simple. Torture, applied in a controlled and limited way, works, just as the death penalty prevents that one criminal from committing any more crimes.
The win/win analysis of torture is wishful thinking.
Actually, the Geneva COnventions (with an ‘s’) are four Conventions (and two Protocols) that make up the laws of armed conflict (governing things like POW status, treatemnt of civilians, etc.). While they are Conventions, they are considered to be “customary international law”, which means they apply to all of humainty regardless of the status of an individual, or even the consent of a state. A state does not just “agree” to not behave a certain way toward other signatories, it is an obligation owed to all of humanity.
Second, and more importantly, the Geneva Conventions are not the end of the story about Torture. The Convention against Torture (which is not one of the Geneva Conventions – because torture can happen in more than just armed conflict) is the primary obligation on torture, and it is categorical about states not engaging certain acts. Look at articles 1 and 2 here.
This COnvention is also “customary international law” meaning that it is a binding, non-voluntary obligation to humanity on all states. To engage in an act of torture is to commit a crime againts humanity.
That is the simple legal truth.
It appears that you’re right, Rob. We should un-sign the Geneva Conventions.
That is the thing about “customary international law”, you can’t un-sign it (even more so with a ‘jus cogens’ norm, which torture prohibitions may also be)! These are obligations of such fundamental human importance that they apply to all states regardless of their consent to be bound.
My apologies for the horrific spelling in my last post 🙁
BTW, you should put a “required field” asterix beside the email field on the comment page. I lost a long comment on the “setting the record straight” post – which I am sure disappoints you greatly 😉 – because I forgot to put the email and when it gives you the error message it discards the comment.
Customary International Law needs to be updated, then, to accomodate the needs of states doing battle with terrorist groups that don’t recognize its authority. You’re asking us to enter the fray with one hand tied, which isn’t going to do anybody any good in the long run.
I think this is why Gonzales referred to the conventions as “quaint”.
Whether they recognize its authority or not, individuals (i.e. those not fighting for a state army, terrorists if you will) remain accountable under the laws of armed conflict and torture. When the dust settles on this, Tribunals will be (and have been – see the Hussein tribunal) created to prosecute dictators and terrorists for committing war crimes and crimes against humanity – of which killing of civilians and torture are but a few. Not even the laws of armed conflict (i.e. the Geneva Conventions) protect combatants (legal or otherwise) from prosecution for war crimes; they are only protected from prosecution for things like murder for killing enemy soldiers (i.e. you can’t charge a Iraqi insurgent for the “murder” of a US soldier, but you can charge them for war crimes for intentionally killing civilians or torturing US soldiers.) And other dictators are being prosecuted, eg. Pinochet is being tried for torture, among other things.
In other words, you don’t need to change the laws to allow torture of SOME enemies and not others. We should simply hold our ground on our rule of law values and prosecute them for breaking those laws. Torture is either good or its bad. If it is good, then anybody can engage in it (eg. Russia can torture the Chechens, Spain the Basque, France the Corsicans, the US to the the Iraqis, and vice versus.) If it is bad, then nobody tortures anybody. There is no middle ground.
If we say lets update torture to allow for it in certain circumstances, then perhaps Hussein was justified in torturing some of HIS enemies, for was it not the case of a STATE fighting non-state terrorists (i.e. those who opposed his legitimacy)?
“Torture” is a broad term, and it’s not clear than any army at any time has ever conformed to current definitions. It’s also a concept that evolved in a world in which combatants generally valued their own lives and those of innocent civilians. I don’t think our world is like that any more.
That may be true. I guess we will just have to contain our expressions of outrage when evidence of the techniques used by Saddam to get information from his enemies emerges at his trial…
Naw, that’s going to far. Let’s just agree that the Abu Ghraib panty-head torture’s not quite as bad as the Al Qaeda beheading torture and be done with it.
No disagreement from me on that…
You’re eminently reasonable.