EDITOR’S NOTE: This article appeared in the December 31, 2004, issue of National Review.
President Bush’s nomination of Judge Alberto Gonzales to succeed John Ashcroft as attorney general will soon come before the Senate for its advice and consent, and there is going to be a battle royal. The Left is marshaling its forces to bloody Gonzales, and clearly hopes to deny him confirmation. The pretext for opposing this superbly qualified appointee will be his role, as White House counsel, in developing the administration’s legal position on the classification and treatment of individuals captured in the War on Terror. The stakes in this battle are high: At issue may be nothing less than the future of American sovereignty.
Ever since the Abu Ghraib prisoner-abuse photographs surfaced nearly a year ago, opponents of the Bush administration’s policies in Afghanistan, Iraq, and elsewhere have used those images in their ongoing effort to discredit the American legal position on “detainees.” That position–which correctly denies captured al-Qaeda and Taliban members the rights and privileges granted to honorable prisoners of war under the Geneva Conventions–was outlined by Gonzales, based on legal advice received from the Departments of Justice and State, in a memorandum to the president dated January 25, 2002. Gonzales explained in that memo that the United States is engaged in “a new kind of war” that is “not the traditional clash between nations adhering to the laws of war that formed the backdrop” for the Geneva Conventions. This “new paradigm,” he concluded, “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, script (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.”
The “quaint” reference will undoubtedly be brought up over and over again during the judge’s Senate hearings. In truth, Gonzales was being charitable. He could have used far harsher language to describe provisions that, were they applicable to al-Qaeda and the Taliban, would require the United States to provide detainees with amenities such as dormitories, kitchenettes, sports equipment, canteens, and a monthly pay allowance in Swiss francs–all while captured (or kidnapped) Americans are routinely butchered. It is hardly surprising that, while the administration preserved the core requirement of humane treatment for detainees captured in the War on Terror, it rejected calls to grant them POW status.
The Geneva POW Convention was one of four treaties negotiated after World War II, with the circumstances of that conflict in mind. It assumed that captured combatants would by and large be young men conscripted into mid-20th-century-type mass armies controlled by nation-states, which themselves were ready and able to comply with the basic rules of war. Neither the treaty’s drafters, nor its terms, nor the governments that agreed to it contemplated the development of transnational terror organizations beyond the control of any state, motivated by religious zealotry and capable of delivering massive attacks on the civilian population.
Even so, the Geneva Conventions do not extend POW protections to captured enemy combatants who do not qualify as “lawful” or “privileged belligerents.” At a minimum, this status requires a proper command structure, uniforms, carrying arms openly, and otherwise operating in accordance with the laws of war. Those laws forbid the purposeful targeting of civilians–the preferred tactic of al-Qaeda, the Taliban, and the Iraqi “insurgents.”
Although the administration’s opponents have variously claimed that the Geneva Conventions do apply to such irregular “unlawful combatants”–either because such individuals are the “armed forces” of Afghanistan or because they are “civilians”–this was not the story 25 years ago. At that time, precisely because the law denies POW status to unlawful combatants, the Left made extraordinary efforts to legitimize the guerrilla tactics favored by “national liberation movements.” The result was the 1977 Protocol I Additional to the Geneva Conventions, a treaty President Reagan rejected and which, as a result, does not bind the United States.
Undeterred by such legal niceties, the administration’s critics have continued to demand that effective POW status be granted to captured terrorists or that they be treated like ordinary criminal defendants, entitled to a speedy trial before a civilian court. The critics have also inaccurately accused the United States of “torture.” This claim is based on the use of “stress” methods of interrogation, such as isolation, exposure to noise, and standing for up to four hours. This is the genesis of the second accusation against Gonzales: that he commissioned a memorandum, dated August 1, 2002, deliberately defining down the concept of “torture.”
This memo, which was prepared by the Justice Department’s Office of Legal Counsel (OLC), has become more controversial than Gonzales’s own memo on the Geneva Conventions. Word on the Washington street is that the opinion was originally demanded by the CIA, which was concerned about its interrogators’ facing unfounded criminal charges if coercive questioning methods were employed. The memo concludes that torture is unlawful, that any criminal prosecution would require proof of a specific intent to inflict severe pain or suffering, and that the federal statute criminalizing torture cannot, consistent with constitutional separation-of-powers principles, be applied to the president’s detention and interrogation of enemy combatants in wartime. This last point is clearly the memo’s most controversial, and although the OLC offers solid legal arguments to support each of its conclusions, they can certainly be honestly debated.
Few of the critics, however, have chosen to wade through the memo’s 50 single-spaced pages of text, dozens of citations, and 26 footnotes to contest the substance of the OLC’s work. Rather, the Left has expressed outrage that the opinion was requested at all–as if asking what conduct is legally punishable as “torture” constitutes an endorsement of its use. Of course, the most pernicious–and baseless–accusation is that this memorandum, along with Gonzales’s earlier position on the application of the Geneva Conventions, led to the abuses at Abu Ghraib by creating a “permissive climate.” Although this charge is rebutted by the final report of the Schlesinger Commission (established to conduct an independent review of the abuses at Abu Ghraib and alleged abuses elsewhere), it remains an article of faith among the administration’s opponents.
Some of this is clearly motivated by partisan politics, but there is much more than that at work here. The administration’s most determined opponents object to the fact that the United States has refused to accept Protocol I when most other countries have accepted it, and that the American government maintains a definition of “torture” more restrictive than the norm propounded by international advocacy organizations such as the International Committee of the Red Cross, which effectively considers torture to be any coercive method of interrogation designed to break down the prisoner’s resistance, regardless of physical or mental impact.
The reasons for this run right to the San Andreas fault of political philosophy. For the past 400 years or so, the global organizing principle has been one of consent. Nation-states, being equally sovereign and independent actors, can be bound to legal obligations only to the extent that they have consented to be so. The Bush administration has accordingly taken the position that the United States is not bound by new requirements for the treatment of unlawful combatants, such as those in Protocol I, because, as a sovereign and independent state, it has not agreed to be.
Its opponents, however, believe that these requirements are “universal” and applicable to all states whether or not they have assented to the treaties, or particular interpretations of treaties, that originally established the requirements. They posit this universalism as a new and better super-national organizing principle. Indeed, for decades, international activists and academics have argued that the traditional system of independent nation-states is inadequate to ensure global peace and justice. In the human-rights area, they claim states are no longer permitted to “opt out.” This includes the United States on issues such as the death penalty, the use of military force without U.N. approval, and the treatment of detainees.
It is no coincidence that American democracy developed when contract theories of society and government were intellectually ascendant, or that American conservatives continue to cling to “the consent of the governed” as the source of political legitimacy. But it is not surprising that the Left’s attachment to this fundamental principle–an attachment that has been waning since the mid-19th century at least–is now virtually exhausted. Popular sovereignty has a decidedly mixed record in producing “progressive” results, especially on questions of war, peace, and national security.
In developing the administration’s policy on detainees, Judge Gonzales looked to the treaties to which the United States has consented, and interpreted those treaties in accordance with traditional laws of war and the Constitution’s overarching requirements. That, in the eyes of the administration’s opponents, was his sin, and they consider it unforgivable. And that is why conservatives must defend his nomination to be attorney general, and why they must prevail.
–Messrs. Casey & Rivkin served in the Justice Department under Presidents Reagan and George H. W. Bush, and are expert members of the U.N. Sub-commission on the Promotion and Protection of Human Rights. The views here expressed are their own.