Last weekend’s elections restored real democracy to Iraq for the first time in half a century, providing compelling vindication to supporters of Condoleezza Rice’s confirmation as secretary of state. Likewise, the growing consensus behind the president’s decision that al Qaeda terrorists are morally entitled to humane treatment but not legally entitled to the special privileges afforded to prisoners of war under the Third Geneva Convention of 1949 provides compelling vindication to supporters of Judge Alberto R. Gonzales’s nomination to be our nation’s 80th attorney general. Securing a proper resolution to this debate is critical to the ongoing success of our global war against terrorism.
In the opening months of 2002, the Bush administration announced plans to transfer a number of al Qaeda and Taliban fighters captured and detained by U.S. armed forces to Guantanamo Bay, Cuba, for further detention and questioning. The administration also announced that, although these detainees would be treated humanely, as a legal matter they were not entitled to the numerous additional privileges afforded to prisoners of war under the Geneva Convention.
The administration’s interpretation of the Geneva Convention was not only legally correct, but also essential to national security. After all, the ability to question al Qaeda fighters is essential to preventing future acts of terrorism. As Judge Gonzales rightly noted during his confirmation hearing, the war on terrorism is essentially a war of information. The United States simply must use all available legal means to obtain the information and intelligence necessary to protect the American people from further terrorist attack–a position shared even by the witnesses at the hearing who were hostile to Judge Gonzales.
When its Geneva position was first announced, however, the administration was harshly criticized for failing to extend prisoner-of-war privileges to al Qaeda fighters–and those same criticisms are now being repeated by some opponents of Judge Gonzales’s nomination.
These critics misunderstand the requirements of the Geneva Convention. Under the convention, only lawful combatants are eligible for POW privileges. Notwithstanding the contention of some critics, even the Red Cross’s own guidelines make clear that, to earn POW privileges, combatants must satisfy all four conditions of lawful combat: being commanded by a person responsible for his subordinates, having a fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting their operations in accordance with the laws and customs of war.
Do Judge Gonzales’s critics honestly believe that al Qaeda complies with the laws of war? After all, al Qaeda’s sworn purpose is to terrorize innocent civilians–in flagrant violation of the fundamental principles of the laws of war.
Not surprisingly, then, the Bush administration’s legal interpretation of the Geneva Convention enjoys overwhelming support. It is not only well grounded in the text, structure, and history of the convention–as documented in authoritative international-law treatises–but has also been affirmed by three federal courts across the country and endorsed by the 9/11 commission and the Schlesinger report, as well as numerous legal scholars and international legal experts from across the political spectrum.
Moreover, the recent confirmation hearing only reinforced the fact that Judge Gonzales has essentially won the debate over the Geneva Convention. Even Sen. Patrick Leahy (D., Vt.)–joined by the two law school deans who testified at his invitation, Harold Koh and John Hutson–eventually conceded during the course of the hearing that the president and Judge Gonzales are correct: Al Qaeda fighters are not POWs.
Some who grudgingly concede that al Qaeda fighters have no legal right to POW status nevertheless complain that the administration failed to provide them with hearings to protest their status. Yet the Geneva Convention provides a right to a “competent tribunal” for a determination of one’s POW status only when there is “doubt” about such status. That’s a complex question, to be sure, for military experts who possess the relevant facts. Yet even the Washington Post has editorialized that “[f]ew of the inmates at Guantanamo have a realistic”–let alone valid–”claim to POW status; certainly none of the al Qaeda inmates do.”
Achieving consensus on the Geneva Convention is not just a victory for the president and Judge Gonzales, it is also a victory for national security.
Extending POW protection to al Qaeda would be dangerous to our soldiers, because the Geneva Convention guarantees POWs access to a variety of devices that could easily be turned into weapons against their captors. It also forbids POWs from being confined in isolated cells. POWs are even entitled to a monetary allowance to purchase goods and preferential customs treatment for shipments they receive from the outside world. Surely no one claims that we must equip al Qaeda terrorists with tools that could be used to hurt our very own soldiers?
Recognition of POW status would also dramatically disable us from obtaining the intelligence needed to prevent further attacks on U.S. civilians and soldiers. Under the convention, questioners could not entice detainees to respond by offering creature comforts or other preferential treatment – even though that is standard operating procedure in police stations across our country. Surely no one believes that al Qaeda fighters deserve to be treated better than an American citizen accused of a crime?
POW status even confers broad combat immunity against criminal prosecution before civilian and military tribunals alike. Surely no one contends that al Qaeda fighters had a legal right to strike the Pentagon?
In addition, giving POW status to unlawful combatants would badly undermine international law itself. The laws of war are specifically designed to entice combatants to comply with international law by offering better treatment in the event of capture–but better treatment only in return for obeying the laws of war. As a renowned treatise on the law governing prisoners of war explains, “the only effective sanction against perfidious attacks in civilian dress is deprivation of prisoner-of-war status.”
Reasonable lawyers can certainly disagree on the precise meaning of the Third Geneva Convention. But that does not change the fact that the administration’s core conclusion–that al Qaeda fighters have no legal right to special POW privileges–deserves the consensus it has finally achieved. And it certainly does not change the fact that Judge Gonzales is an exceptional attorney and a good man who deserves confirmation to be our attorney general.
–The author is a U.S. Senator from Texas and a member of the Senate Judiciary Committee. He served previously as Texas attorney general and state supreme court justice.