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January 06, 2005

GONZALES, ETC.: I kind of shot my wad with the 2000+ word post below, which has gotten me slammed as both an accomplice of modern Mengeles and a pointy-headed terrorist sympathizer. Besides which, I tired of confirmation battles after Bork (whom I opposed) and don't generally blog them. But, as always, Greg Djerejian offers a thoughtful take, with which I largely agree.

UPDATE: In a response, Andrew seems to think that I'm supporting torture. But I've never said that, and I don't; I keep saying that torture is wrong, and that it's counterproductive, and apparently that message has gotten through to the folks who think that opposing torture makes me some sort of weakling, if not to Andrew. I simply think that histrionics don't help, and partisan opportunism -- of which there's a lot here -- may actually make things worse, a point of mine that Andrew does not engage, though Greg Djerejian certainly recognizes it. I've certainly been happy to call attention to misbehavior where I thought it needed it, and wasn't getting enough attention. But I think that trying to make this question emblematic of the entire war effort -- one that Andrew supported at its inception quite vigorously, I should note -- strikes me as highly dubious. Opponents of the war are doing this, and Andrew seems to be perilously close to doing it, too. (As Roger Simon notes, "rendition" goes back to the Clinton Administration.)

As Eugene Volokh said quite some time ago: "This is a hard question that reasonable people can and should debate. But it seems to me that abstract arguments about moral high grounds or stooping to the enemy's level do more to weaken the argument against torture than to strengthen it."

And speaking of Volokh, today he points to this Scrappleface item, which seems to fit the facts all too well:

Alberto Gonzales, President Bush's Attorney General nominee, told the Senate Judiciary Committee today that he would state only his name, rank, date of birth and Air Force serial number, which is all that is required under the terms of the Geneva Conventions. . . .

Mr. Gonzales' refusal to answer Senators' questions did not affect the committee's inquiry, which consists primarily of speeches to a gathering of journalists.

That's pretty much what I feared. Likewise, this report suggests that we're getting the worst of both worlds: bad press over torture combined with ineffectual interrogation:

A master narrative—call it the “torture narrative”—sprang up: the government’s 2002 decision to deny Geneva-convention status to al-Qaida fighters, it held, “led directly to the abuse of detainees in Afghanistan and Iraq,” to quote the Washington Post. In particular, torturous interrogation methods, developed at Guantánamo Bay and Afghanistan in illegal disregard of Geneva protections, migrated to Abu Ghraib and were manifest in the abuse photos.

This story’s success depends on the reader’s remaining ignorant of the actual interrogation techniques promulgated in the war on terror. Not only were they light years from real torture and hedged around with bureaucratic safeguards, but they had nothing to do with the Abu Ghraib anarchy. Moreover, the decision on the Geneva conventions was irrelevant to interrogation practices in Iraq.

No matter. The Pentagon’s reaction to the scandal was swift and sweeping. It stripped interrogators not just of stress options but of traditional techniques long regarded as uncontroversial as well. Red tape now entangles the interrogation process, and detainees know that their adversaries’ hands are tied. . . .

To read the techniques requested is to understand how restrained the military has been in its approach to terror detainees—and how utterly false the torture narrative has been. Here’s what the interrogators assumed they could not do without clearance from the secretary of defense: yell at detainees (though never in their ears), use deception (such as posing as Saudi intelligence agents), and put detainees on MREs (meals ready to eat—vacuum-sealed food pouches eaten by millions of soldiers, as well as vacationing backpackers) instead of hot rations. The interrogators promised that this dangerous dietary measure would be used only in extremis, pending local approval and special training.

I don't know which narrative is true, but I'm sure that the Gonzales hearings won't do anything to enlighten us. Which was, you know, my point.

MORE: From the boy-you-sure-can't-please-everyone-department comes this email:

You seem to agree with Andrew Sullivan that we should afford all terrorist prisoners Geneva Convention rules treatment.

To make the issue crystal-clear: if Mohammed Atta and say 5 of his co-terrorists (comrades in terror?) had been apprehended on say 2 September 2001, would you approve of the application of some duress on them to make him speak? To save those 2800 lives, I mean. There were 4, possibly 5 planes and at least 18 co-conspirators.

What do you say, then? If you truly want to follow the Geneva Conventions with non-military combatants, you would be sanctioning the planning for the WTC Memorial - by letting Mr Atta stay "heroically" mum.

Fortunately, I didn't start this blog in order to please everyone, and I've certainly succeeded in avoiding that. . . . Still, this email illustrates several problems. First, whether or not torture is okay doesn't depend on the Geneva Conventions; one might decide that torture isn't okay even regarding those to whom the Conventions do not apply, after all. I also wonder whether torture would be effective in getting the likes of Mohammed Atta to offer truthful information. I'm skeptical, which is one reason why I oppose torture.

I do not agree that the Geneva Conventions apply in all cases, of course, nor do I regard them as Holy Writ. They're international agreements arrived at among specific parties, at a specific time, for specific purposes, and whether either the agreements themselves or the principles they contain should govern in other circumstances is hardly beyond the bounds of reasonable discussion, as Andrew -- who in other circumstances seems less deferential to existing law simply as law -- seems to suggest.

Request for citations here.

MORE: Others weigh in:

Yet, at today’s confirmation hearing for Judge Alberto Gonzales, both of the two legal experts called by Senator Leahy to testify against Judge Gonzales conceded that al Qaeda fighters are indeed not POWs. Due to the extensive questioning of Judge Gonzales, the two legal experts did not begin their testimony until very late in the afternoon.

Following that testimony, Senator Cornyn asked the two professors: if someone is determined to be an al Qaeda fighter, “would they be entitled to the protections of the Geneva Convention?”

Dean Harold Koh gave a somewhat wordy response that eventually concluded with this clear, unequivocal statement: “they are not POWs.” Following Dean Koh’s response, Dean John Hutson said: “I take the same view.”

This doesn't, of course, mean that torture is okay. Which illustrates why this is more than simply a legal question.

Meanwhile, Michael Totten observes: "Making this issue about a person (Bush or Gonzales) only turns the argument into a partisan bitch-fest." Yes.