The left wants to sink Alberto Gonzales's nomination to be attorney general and not because he's a conservative, or because he might some day be nominated to the Supreme Court. Both of those otherwise sufficient motives are subordinated to the left's determination to give suspected terrorists captured abroad the same legal rights and protections that a Los Angeles purse snatcher has. Gonzales, as counsel to the President, has been at the forefront of the fight to redefine the concepts of war to fit the new kind of war terrorists wage against us. To those who want to win this war, the fight over Gonzales's nomination is much more important than the nomination itself.
Gonzales authored a January 2002 memo to the President advising against Colin Powell's plea that the President reverse his earlier decision that Taliban and al-Qaeda prisoners were not prisoners of war under the Geneva Conventions entitled to their protections. In it, Gonzales wrote that, "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges…athletic uniforms and scientific instruments." Gonzales later approved an August 2002 Justice Department opinion, written at the CIA's request, that defined torture -- illegal under U.S. law and international convention -- to be the infliction of pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
The left now paints Gonzales as President Bush's Torquemada. They want to equate his correct opinion that terrorist prisoners aren't POWs to advocacy of torture, and blame him for everything from Abu Ghraib to allegations of prisoner abuse at Guantanamo Bay, Cuba. Now, in a December 30, 2004 memo, the Justice Department has reinterpreted the law against torture in terms the left will try to use against Gonzales. But nothing in the new memo overturns Gonzales's earlier advice to the President, or makes the left's case against him or against what our forces are doing.
The new memo says that the August 2002 definition of torture was wrong to equate severity of physical abuse to that of serious physical injury resulting in organ failure or death. Instead, explaining both the international Convention Against Torture and U.S. law, the memo shows that many prisoner interrogation methods -- which are not allowed in interrogation of suspects in domestic criminal proceedings -- are perfectly permissible in dealing with terrorists.
U.S. law defines torture as an act specifically intended to inflict severe physical or mental pain or suffering, other than the pain or suffering that is incidental to lawful sanctions. U.S. courts have ruled, for example, that the definition of "torture" excludes threats of death and holding a woman incommunicado by Libyan authorities, but includes acts such as removal of teeth with pliers and forced games of "Russian roulette." Importantly, the new memo says that the prohibition of severe mental pain or suffering includes only those practices that impose mental damage that extends for a prolonged period. In practical terms, the new memo approves what American forces are doing on the battlefield as well as in places that terrorist subjects are held.
In 2003, army Lt. Col. Allen West was investigated for abusing an Iraqi prisoner. West, under threat of assassination, took an uncooperative prisoner outside the interrogation room and threatened him with death. West said something to the effect of, "This is it. I'm going to count to five again, and if you don't give me what I want, I'm going to kill you," and then fired his pistol into the barrel of sand. The man started talking, and gave West specific information that enabled him and his men to avoid ambushes by the terrorist's fellow plotters. What West did -- threaten death and then impose severe but not prolonged mental pain -- is legal in war but offensive to the ACLU. West was not charged with any crime, nor should he have been.
All the loose talk of torture at Abu Ghraib and Guantanamo is mostly that: loose talk by people who want to apply domestic legal standards to a war in which those standards don't -- and can't -- apply. According to a reliable Defense Department source, our people aren't using "stress positions" -- causing significant pain for prolonged periods -- even though much of that practice wouldn't be illegal "torture" under the law. That same source said that we aren't even using psychotropic drugs in interrogations, though we can -- and probably should -- do so without violating the law. In short, what our forces are doing -- and what Gonzales advised -- is legal, sensible, and necessary.
U.S. courts are, and should remain, reluctant to impose their judgment on the conduct of a war. When the courts told the administration that it couldn't hold prisoners indefinitely without some judicial proceeding to distinguish those who are entitled to POW rights from those who aren't, the left proclaimed a huge victory over our lawless prosecution of the war. It wasn't. It was only a slap on the wrist to Pentagon lawyers who had taken too long to carry out the President's orders for military tribunals to determine prisoners' status and punish terrorists.
Alberto Gonzales is no Torquemada. He is a conservative lawyer who offends liberals because his advice doesn't try to impose liberal pieties on the prosecution of the war against terrorists and the nations that support them. Confirmation of Gonzales will not quiet those of the media, the ACLU, the U.N., and the Red Cross who wish to impose extra-legal restrictions on our forces and intelligence agencies. But Senate rejection of Gonzales would be an undeserved endorsement of their condemnations of our soldiers, our President, and how we have to fight this war.
TAS Contributing Editor Jed Babbin is the author of Inside the Asylum: Why the UN and Old Europe Are Worse Than You Think (Regnery Publishing).
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