A Gonzales Supporter Speaks Out

Boalt Law School Professor John Yoo was deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003. He wrote an article that defends wartime policy with respect to the attorney general confirmation hearings for Alberto Gonzales. Snippet:

This week, the Senate Judiciary Committee will hold hearings on the nomination of Alberto Gonzales to be attorney general. It comes as no surprise that he is likely to face hard questions. As counsel to the president for the past four years, Gonzales helped develop the United States' policies in the war on terror. He demonstrated leadership and, as is often the case in perilous times, generated controversy. He will encounter questions about the decision to deny prisoner-of-war status under the Geneva Conventions to Al-Qaida and Taliban fighters and about his role in what have come to be known as "torture memos.'' As a Justice Department lawyer, I dealt with both issues – I worked on and signed the department's memo on the Geneva Conventions and helped draft the main memo defining torture. I can explain why the administration decided that aggressive measures, though sometimes unpopular, are necessary to protect America from another terrorist attack. Sept. 11, 2001, proved that the war against Al-Qaida cannot be won solely within the framework of the criminal law. The attacks were more than crimes – they were acts of war. Responding to the attacks and protecting the United States from another requires a military approach to the conflict. But Al-Qaida, without regular armed forces, territory or citizens to defend, also presents unprecedented military challenges. 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.'' The press has consistently misrepresented Gonzales' views and latched onto a sexy sound bite used out of context. When Gonzales said in the memo that this new war made some provisions of the Geneva Conventions "quaint,'' he referred to the requirement that POWs be given commissary privileges, monthly pay, athletic uniforms and scientific instruments. Many stories cut the quotation short, making it seem as if he had deemed the conventions themselves "quaint.'' 'Obsolete' limitations Gonzales' memo did, however, say that the terrorist threat rendered "obsolete Geneva's strict limitations on questioning of enemy prisoners.'' Why? Because the United States needed to be able "to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.'' Information remains the primary weapon to prevent a future Al-Qaida attack on the United States. Gonzales also observed that denying POW status would limit the prosecution of U.S. officials under a federal law criminalizing a grave breach of the Geneva Conventions. He was concerned that some of the conventions' terms were so vague (prohibiting, for example, "outrages upon personal dignity'') that officials would be wary of taking actions necessary to respond to unpredictable developments in this new war....

Yoo goes on, defining "torture" by various conventions, including that as stipulated by the U.S. Congress in 1994, and then justifying Gonzalez's actions as counsel to the President during our "unconventional war".

The problem with all this is that the "newly defined" torture that Yoo supports has been and is being used on suspected terrorists, not proven terrorists. I have a huge problem with the current Administration's policy of guilty until proven innocent, as they've been applying to anyone they damn well please, with literally no judicial oversight.

This whole exercise in defining what is and what is not torture is just one symptom of the overall failure of our progressive political faction to retain any significant influence on government policy during the past 24 years. We know what's wrong, we are damn well good at saying what's wrong, but we're literally powerless in acting on it. Shame on all of us.