Briar Patch Revisited

Yesterday’s news stories about the Democrats’ grilling of Alberto Gonzales generally made him sound chastened and more or less apologetic, promising to oppose torture as Attorney General, as though that were a change in his or the administration’s position. Today’s editorial comment is, in some quarters, vituperative. The New York Times called Gonzales “a central figure in the policy decisions that laid the groundwork for the abuse at Abu Ghraib and other American military prisons,” without citing any evidence for that claim. The Times absurdly characterizes a 2002 memo by the Justice Department as saying that “Mr. Bush could authorize Americans to torture prisoners with impunity and that redefined torture to exclude almost any brutality,” and concludes by calling Gonzales “the public face for inhumane, illegal and clearly un-American policies.”
Likewise, Times columnist Bob Herbert lays it on thick, calling Gonzales “the enabler in chief of the pro-torture lobby” — despicable, even by the Times’ standards — and claiming that the administration has “thumbed its nose at the Geneva convention.”
All of this heavy breathing is grotesquely misplaced. The two “offenses” with which Gonzales is charged are: 1) he received a memo written by the Justice Department on the question of what conduct would violate a statute that prohibits torture and other cruel and inhumane activity. The Justice Department’s analysis of that statute appears to me to be sound, but, in any event, it was their analysis, not the nominee’s. 2) He received from the Justice Department, and passed on to the President, a memo from the Justice Department on whether the Geneva convention applies to al Qaeda and Taliban prisoners. The Justice Department concluded, and Gonzales agreed, that the Geneva convention does not apply to those prisoners.
That conclusion is obviously correct. There is no colorable reading of the convention under which it would apply to those individuals, as several federal courts have held. The Democratic Senators who questioned Gonzales were not prepared, of course, to dispute this legal conclusion, but they seemed to argue that the administration erred by not pretending that the convention covered terrorists, regardless.
All of this huffing and puffing about the administration’s “pro-torture” policies depends, of course, on ignoring what the administration’s policies actually are. As we’ve pointed out before, President Bush responded to the Justice Department’s memo on the application of the Geneva convention to Taliban and al Qaeda prisoners by agreeing that the convention does not apply, but directing that prisoners be treated humanely in any event. President Bush wrote, on February 7, 2002:

I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with Al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, Al Qaeda is not a High Contracting Party to Geneva.
Of course, our values as a Nation…call for us to treat detainees humanely, including those who are not legally entitled to such treatment…As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

Further, the Bush administration has always taken the position that the Geneva convention applies to the conflict in Iraq–a position that I think is an excessively broad reading of that treaty, as applied to the current phase of the conflict.
Thus, the substantive criticisms of Alberto Gonzales are frivolous, as is the claim that the Bush administration has promulgated “pro-torture” policies.
But Senatorial harassment of nominees is rarely about policy, and nearly always about politics. The Democrats’ objective, I think, is to tar Gonzales with the Abu Ghraib brush, to give the newspapers grounds to label him as “controversial,” and thereby (in addition to smearing the Bush administration) to lay the groundwork for opposing him should President Bush ever appoint Gonzales to the Supreme Court.
Deacon thinks it is politically foolish for the Democrats to posture themselves as the party that is solicitous for the welfare of captured terrorists. I’m not sure I agree. I do think that the Democrats’ treatment of Gonzales would have damaged them if more people had seen it, but the news accounts, as noted above, generally made the hearing sound as though Gonzales was repentant. The actual transcript, however, shows that Gonzales performed well, as in this exchange with Senator Lindsay Graham:

GONZALES: Senator, there is a lot to respond to in your statement. I would respectfully disagree with your statement that we’re becoming more like our enemy. We are nothing like our enemy, Senator. While we are struggling, mightily, trying to find out what happened at Abu Ghraib, they are beheading people like Danny Pearl and Nick Berg. We are nothing like our enemies, Senator.

But you won’t read anything good about Gonzales’s performance in the newspapers, and I suspect that the revulsion at Abu Ghraib is so universal, and the issues so poorly explained to the public, that associating Gonzales’s name with that episode, no matter how unfairly, may be good politics.

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