Three fallacies about Gonzales

The Washington Post editorial board opposes the confirmation of Alberto Gonzales as U.S. Attorney General. The Post’s editors supported the confirmation of John Ashcroft, as well as our military action in Iraq, so their opposition to Gonzales should be taken seriously. Unfortunately, however, that opposition is based on at three fallacies.
First, as the invaluable Kenneth Anderson points out, the Post errs in claiming that we violated the Geneva Conventions by not bringing the individuals we rounded up in Afghanistan before a tribunal. While Anderson disagrees with the decision not to use a tribunal, he makes it clear that this decision did not violate the Conventions.
Second, the Post attacks Gonzales for ignoring the advice of professionals such as Colin Powell who advised him that present interrogation techniques were effective, and that going beyond these techniques would invite retaliation against U.S. troops. But if those who (unlike Powell) were actually in charge of the interrogations had believed that preexisting techniques were effective, the issue of whether it is lawful to employ additional techniques would never have come up. Like so many liberals, the Post’s editors want to assume away any tension between the need for effective interrogation and the desire not to use harsh techniques. The Bush administration does not have that luxury. As to the need to weigh concerns about retribution, this is a pure policy decision and thus not the kind of issue the White House counsel would normally help decide. The Post presents no evidence that Gonzales helped decide it.
Finally, the Post relies on the fact that courts, including the Supreme Court, have rejected some of the legal positions advocated by the administration with respect to the rights of detainees (correctly so in at least one instance, I believe). Here, the Post again misunderstands the role of legal advocates. If Gonzales were not a government lawyer, the fact that any court, even the Supreme one, rejected a legal position he advocated obviously would have no bearing on his fitness. In my view, government lawyers stand in a somewhat different position. Unlike many such lawyers with and against whom I have practiced, I believe the government should never advance a position unless its lawyers consider it well-taken, as opposed to merely non-frivolous. But the fact that the Supreme Court ultimately rejects an argument does not mean that its advocates did not reasonably consider the position well-taken. If government lawyers were to be deemed unqualified for advancement because the Supreme Court, a highly politicized body itself, has rejected their arguments, government lawyers would have no incentive ever to take a controversial position. Moreover, in the case of a phenomenon like the war on terrorism, which creates uncharted waters, it is difficult to see how any advocate could take only positions that the courts are highly likely to uphold.
Ultimately, the Post wants an Attorney General who thinks that terrorists and terror suspects have more rights than the administration believes they do. But, whatever general mandate President Bush may or may not have, there’s no doubt that the public strongly supports his approach to tracking down and dealing with terrorists. Absent better arguments than the Post is able to present, the Gonzales nomination should not be rejected based on his role in providing legal advice in support of that approach.

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