Anguish is not analysis

Andrew Sullivan is deeply disturbed by reports he has read regarding instances of torture (the real, old-fashioned kind) at U.S. detention facilities. And it sounds like he should be. But his distress clouds his reason in his Sunday Times of London piece about Alberto Gonzales. Sullivan criticizes Gonzales for writing a memo in which he argued that al-Qaeda prisioners do not qualify for protection under the Geneva conventions and that, in any case, the president has the authority to overrule those conventions. He then argues that, although the president, “exercising the powers granted him by Gonzales,” decided he would grant terror war prisoners Geneva protection, he made it clear that they were “scum.” This “mixed message,” says Sullivan, has led to the use of torture at U.S. detention facilities.
Even taking Sullivan’s anguish into account, it’s difficult to understand how he could be so confused. The only torture-related issue relevant to Gonzales is whether his legal advice on the issues he addressed was sound. If it was, then it is irrelevant, for purposes of his confirmation, what occurred after he gave the advice, either in terms of excecutive policy decisions or actions taken in the field. And Sullivan never disputes Gonzales’ legal conclusions, much less attempts to show they are legally incorrect.
In this regard, note Sullivan’s comment “the president, exercising the powers granted to him by Gonzales, nevertheless decided he would grant all terror war prisoners Geneva protection — at his discretion.” Surely Sullvan understands that Gonzales was not granting powers to the president, he was merely telling the president, at the president’s request, what powers he thought were granted under the law. Again, there is no issue here until it is demonstrated that Gonzales’ opinions were legally incorrect. And even at that point, the problem would be that Gonzales misinterpreted the law, not that he granted powers to the president.
Next, consider Sullivan’s claim that, when Bush signaled that the prisoners were scum but should be treated humanely nonetheless, he sent a “mixed message” that has resulted in instances of torture all over the world. This argument, again, has nothing to do with Gonzales, who provided legal advice and neither formulated policy nor sent signals about whether known and suspected terrorists are “scum.” That aside, it would be interesting to know what kind of statements Bush would have to make about known and suspected terrorists in order to send the kind of message that would exempt him, in Sullivan’s mind, from abuses committed in the field. I doubt that any true utterances about these prisoners would qualify. The reality is that these folks are different from traditional prisoners of war in ways that raise legitimate questions about whether they should be treated the same as traditional POWs in all respects. The mere acts of acknowledging that reality and tackling these questions, whether as a legal or a policy matter, does not make one guilty of setting the stage for all manner of barbaric abuses.
Rich Lowry address some of these same themes. Lowry agrees that “in the Gonzales fight, Democrats make, once again, their lack of seriousness in the war on terror plain.” Thus, “the Bush administration should relish waging the battle for its nominee.”

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