Gonzales Hearings Must-Read
John Yoo, the former Justice Department attorney who worked with Attorney General-designate Alberto Gonzales on the infamous "torture" memo, wrote an op/ed in yesterday's San Jose Mercury News that is a must-read for anyone who's going to follow the hearings.
Yoo describes Gonzales' inquiries as fact-findings for the purpose of understanding the parameters he was working within, not as policy itself. Duh. Here's an excerpt, but it's definitely worth reading the whole thing:
One of the first policy decisions in this new war concerned the Geneva Conventions -- four 1949 treaties ratified by the United States that codify many of the rules for war. After seeking the views of the Justice, State, and Defense departments, Gonzales concluded in a draft January 2002 memo to the president that Al-Qaida and the Taliban were not legally entitled to POW status. He also advised that following every provision of the conventions could hurt the United States' ability to protect itself against ruthless enemies.
Gonzales' memo agreed with the Justice Department and disagreed with the State Department, which felt the Taliban (though not Al-Qaida) qualified as POWs.
The Justice Department's Office of Legal Counsel -- where I worked at the time -- determined that the Geneva Conventions legally do not apply to the war on terrorism because Al-Qaida is not a nation-state and has not signed the treaties. Al-Qaida members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians -- violating the fundamental principle that war is waged only against combatants.
Consistent American policy since at least the Reagan administration has denied terrorists the legal privileges reserved for regular armed forces.
The Taliban raised different questions because Afghanistan is a party to the Geneva Conventions, and the Taliban arguably operated as its de facto government. But the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields.
According to Gonzales' memo, the State Department argued that denying POW status to the Taliban would damage U.S. standing in the world and could undermine the standards of treatment for captured American soldiers. Gonzales also passed on the department's worry that denying POW status ``could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.''
That possibility needed to be weighed against the graver concern, so strong in those early post-9/11 days, of how best to make up for the intelligence lapses of the Clinton Administration and get some control over our fate. If the media and the Left would stop confusing high-pressure/low-pain interrogation techniques with "torture," we'd all be better served.
Yoo describes Gonzales' inquiries as fact-findings for the purpose of understanding the parameters he was working within, not as policy itself. Duh. Here's an excerpt, but it's definitely worth reading the whole thing:
One of the first policy decisions in this new war concerned the Geneva Conventions -- four 1949 treaties ratified by the United States that codify many of the rules for war. After seeking the views of the Justice, State, and Defense departments, Gonzales concluded in a draft January 2002 memo to the president that Al-Qaida and the Taliban were not legally entitled to POW status. He also advised that following every provision of the conventions could hurt the United States' ability to protect itself against ruthless enemies.
Gonzales' memo agreed with the Justice Department and disagreed with the State Department, which felt the Taliban (though not Al-Qaida) qualified as POWs.
The Justice Department's Office of Legal Counsel -- where I worked at the time -- determined that the Geneva Conventions legally do not apply to the war on terrorism because Al-Qaida is not a nation-state and has not signed the treaties. Al-Qaida members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians -- violating the fundamental principle that war is waged only against combatants.
Consistent American policy since at least the Reagan administration has denied terrorists the legal privileges reserved for regular armed forces.
The Taliban raised different questions because Afghanistan is a party to the Geneva Conventions, and the Taliban arguably operated as its de facto government. But the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields.
According to Gonzales' memo, the State Department argued that denying POW status to the Taliban would damage U.S. standing in the world and could undermine the standards of treatment for captured American soldiers. Gonzales also passed on the department's worry that denying POW status ``could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.''
That possibility needed to be weighed against the graver concern, so strong in those early post-9/11 days, of how best to make up for the intelligence lapses of the Clinton Administration and get some control over our fate. If the media and the Left would stop confusing high-pressure/low-pain interrogation techniques with "torture," we'd all be better served.
posted by Laer at 9:19 AM
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