Sunday, January 16, 2005

The Post and Powerline on Gonzales

The Washington Post has just announced its opposition to the nomination of Alberto Gonzales for Attorney General. This was not a preordained conclusion, as they supported the nomination of John Ashcroft and the war in Iraq, both signature GOP initiatives that have come under heavy fire from the liberal left.

Powerline attacked three of the editorial's arguments. They claim that the Post erred in saying that not giving detainees to determine if they are illegal combatants was a violation of the Geneva Conventions; they argue that the methods of interrogation authorized by Gonzales might have been more effective than the previous standards, at least within the realm of argument; and finally they claim that the Post was wrong to imply that the Supreme Court's repudiation of Gonzales' positions rendered him unfit for office.

I agree with the last attack by Powerline, but I think the first two deserve some scrutiny. On the first issue, Powerline cites AU Law Professor Kenneth Anderson, who claims that while not giving detainees a hearing is unwise, it is not illegal under the text of the convention. The relevant clause is as follows:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." [Article 5, Paragraph 2, 3rd Geneva Convention, emphasis added]

Anderson proceeds to argue:
"The Bush Administration was--and is--not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a "competent tribunal" shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open--it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required."

Now, Anderson is a law professor, and I'm not. So obviously, take what I'm saying with a grain of salt. Anderson is perfectly correct when he says that the text is ambiguous. It doesn't specify how doubt can "arise," nor how or by whom that is determined. What I don't understand is how Anderson reaches his conclusion: that the text therefore indisputably gives the President or Secretary of Defense sole authority to determine the classification without any guidance or oversight. That's one possible interpretation, but as Anderson admits, the text is ambiguous. It's equally possible that the law's intent is precisely the opposite: that all persons detained should be allowed to assert they deserve POW status, and are entitled to a fair hearing to determine this.

Anderson addresses this attack in part further on, claiming that:
"But it is not merely through a technical oversight that Article 5 was drafted this way, as the treaty drafting history indicates. It was designed to take account of the following kind of situation. Suppose the US Navy picks up drug smugglers with tons of cocaine onboard their vessel, out in the Caribbean. One of them claims POW status -- "I am a FARC member from Columbia! I am a POW!" Now, if a hearing were held, obviously that claim would be rejected forthwith...Should that claim by drug smugglers to be entitled to POW treatment pending a fullblown hearing be required? Article 5 was drafted precisely to make clear that you do not have to afford a hearing in every case, only in those cases where some doubt has arisen--and it is not required, under the language of the treaty, for a tribunal to make that determination. In the case of the drug smugglers, it makes perfectly good sense for the commanders to make the determination that doubt has not arisen. It does not make sense, nor is it fair, in the case of fighters picked up in Afghanistan--but it is within the literal wording of the text. It is not a violation of international law."

Specifics of the case notwithstanding (do FARC members even get POW protection?), I don't think it provides an adequate warrant for Anderson's point. What that situation shows is that America doesn't have to entertain frivolous motions for POW status. I'm not even sure I buy that argument--is it really that much of an imposition to have a petition sent to a tribunal who will summarily reject it? However, even granting it as true, it ignores a key distinction: the claims of the Afghan detainees are not necessarily frivolous. Certainly, it is not so cut-and-dry that the executive branch can unilaterally make the determination of "no doubt" for the entire class of detainees. In the case of the single FARC claimant, it is one person making a claim that is almost certainly false and/or irrelevant. In the case of the Guantanomo Bay detainees, it is an entire class of persons, some of whom conceivably have valid claims. These are distinct situations, and especially given the ambiguity of the clause, not to mention the clear intention of the treaty which was designed to prevent government's from inflicting arbitrary abuse on captured warriors, the treaty still seems, to me, to mandate a hearing for the Guantanomo Prisoners.

Powerline's second objection can be parsed down to this sentence:
"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."

This seriously misstates the issue at hand. First of all, it's entirely possible that the current tactics were working fine, and the military might still want to have available more aggressive techniques. They might want them for unforeseen contingencies, or they may be satisfied with the current results but want to keep their options open, or they might just be lusting for more power. But more fundamentally, the point is wholly irrelevant to the debate at hand. Part of being a Democracy is that we go into combat with one hand tied behind our back. We cannot utilize every single action or tactic that our enemies might avail themselves to. It's unfortunate, in a sense, but it also gives us the moral legitimacy that justifies us fighting in the first place. Powerline argues that "[l]ike 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." That isn't true. We might acknowledge a "tension" in certain circumstances, however in a constitutional form of government we cannot unilaterally decide to toss out rule of law whenever circumstances would make that a convenient option. Maybe in cases of overriding national importance (like a nuclear warhead hidden in New York City), I could see the logic behind Powerline's position. But it is repugnant to our legal traditions to make this the default standard. Nor does the government's claim that "we are at war," and thus every action can be justified as "self-defense," save the argument. Again, in certain circumstances that works just fine, but it can't be applied prospectively to every possible threat that might hit our borders. There is a qualitative difference between seeking to avert a vague, looming, or potential threat; and acting to defuse an imminent attack on our nation. The Bush administration papered over this difference with Iraq, and their defenders are doing again here.

Powerline attacks on the Post's editorial fundamentally lack merit. They rest on a flawed view of what the Geneva Conventions require, and they are all too quick to negate the rule of law and constitutional governance which give our nation legitimacy. There may be some room for argument on the fitness of Gonzales to serve as Attorney General. But the Post's argument is quite rational, and to me quite persuasive.

1 comment:

N.S.T said...

1) He's Going to be confirmed, regardless of intellectual bickering about the merits of this preordained conclusion.

2) John Kerry supported both the war in Iraq and, If I'm not mistaken, the confirmation of John Ashcroft, as did many other liberal senators. The Post, Kerry and other liberal-leaning entities in a similar position could(and do, in some cases) easily justify this discrepancy between what they belive and what they did, their words and actions, by claiming they didn't know that either Iraq or Ashcroft would turn out to be so abhorrent to them.