- The Washington Times - Wednesday, January 5, 2005

Judge Alberto Gonzales’ nomination as the next U.S. attorney general comes as President Bush’s opponents have unfortunately decided to use the hearings to challenge the administration’s war on terror policies. This is particularly the case with respect to Judge Gonzales’ role in formulating the U.S. position on how captured members of al Qaeda and the Taliban should be treated. Both the president and Judge Gonzales should welcome this opportunity to debate and defend their decisions. Neither has anything to apologize for.

In the weeks after September 11, Mr. Bush determined that captured al Qaeda and Taliban members would not be classified as honorable prisoners of war under the Geneva Conventions. This decision was based on the plain, centuries-old requirements of the laws of war, which reserve POW status to individuals who qualify as “lawful” or “privileged” combatants — those associated with a military hierarchy, who wear uniforms, carry their arms openly and eschew deliberate attacks on civilians.

Fighters who fail to meet these basic requirements are “unlawful” or “unprivileged” enemy combatants. Once captured, such men can be held until hostilities end, and they are not entitled to a criminal trial unless and until criminal charges are brought against them. Those who claim that the administration “invented” the classification of unlawful enemy combatant, as a means of avoiding otherwise applicable legal requirements under the Geneva Conventions, are ignoring the law and its history.

Moreover, the efforts to link the use of this classification to the abuses at Iraq’s Abu Ghraib prison can only be described as a cynical smear campaign. Denying captured al Qaeda and Taliban prisoners POW rights — including freedom of movement within detention facilities, athletic equipment, and kitchen privileges — did not and could not have created an “atmosphere” encouraging abuse. First, at the same time the president denied the detainees POW status, he also stated definitively that they were entitled to humane treatment at all times. This, too, was based on Judge Gonzales’ advice and counsel.

Second, the actual facts surrounding the Abu Ghraib incidents — as ably outlined and discussed in the bipartisan Schlesinger Commission Report of August 2004 — suggest that the abuses would have occurred even if every captive, in Iraq and at Guantanamo Bay, had been granted POW status. The sexual sadism at Abu Ghraib resulted from a lethal combination of lax discipline, desperate overcrowding and a handful of violent individuals assigned to the “night shift.” Whatever those men and women were reading, it was not legal memoranda prepared by either the White House counsel or Justice Department.

Similarly, suggestions that Judge Gonzales was somehow complicit in the torture of detainees are nothing short of despicable. At no time has the Bush administration in general, or Judge Gonzales in particular, suggested that torture was lawful or acceptable — let alone condoned its use. The Justice Department confirmed this in two separate memorandum, one dated Aug. 1, 2002, and the other Dec. 30, 2004. The first of these memos was particularly controversial because it adopted a narrow definition of the “severe pain or suffering” which legally constitutes torture — intentionally inflicting the type of extreme pain commonly associated with organ failure or death. This definition was, in fact, drawn from another federal statute in which Congress had defined “severe pain” for purposes of medical reimbursement.

The second memorandum, which replaces the first, takes a broader view of the forbidden acts that constitute torture, but nevertheless reaffirms that only the infliction of severe pain or suffering rises to that level. Both memos were occasioned by the need to determine how far U.S. interrogators can go in questioning captives, and neither suggested that torture was an acceptable alternative.

The real question was, and remains, whether “stress” methods of interrogation, such as prolonged standing or sitting in uncomfortable positions, exposure to loud and unpleasant noise, or isolation, can lawfully be used as a means of extracting information from recalcitrant detainees — so long as the interrogation does not result in severe pain or suffering, or cross the line into cruel, inhuman or degrading treatment, which are also prohibited.

With the memories of September 11 fading, many of the administration’s critics have claimed that any form of coercive questioning, regardless of its physical or mental impact, is forbidden merely because it is designed to force a detainee’s cooperation. That is, of course, an arguable policy position, but it simply is not what the law requires. Moreover, as a policy matter, this absolutist view ignores two critical points. First, captured terrorists, unlike POWs, have no legal right to withhold information regarding the plans and capacities of their respective organizations. Second, obtaining this information may well be the only means of protecting the innocent civilians who are their preferred targets.

That too is a humanitarian imperative, and one the administration’s critics too often ignore.

Lee A. Casey and David B. Rivkin Jr. served in the Justice Department under Presidents Reagan and George H.W. Bush, and are members of the U.N. Sub-Commission on the Promotion and Protection of Human Rights. The views expressed here are their own.

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