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Senator Graham on Torture and the Geneva Convention:
One of the interesting parts of today's hearing on the nomination of Alberto Gonzales to be Attorney General was the opening statement of conservative Republican Senator Lindsey Graham. Graham has been sharply critical of the Administration on Abu Graib before, and his opening statement ran the gamut from Abu Graib and Gitmo to torture and the Geneva Convention. Here is the bulk of it [it's rather long, but I think worth reading]:
  I think we've dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law, because it's come back to bite us.
  Abu Ghraib has hurt us in many ways. I travel throughout the world like the rest of the members of Senate, and I can tell you it is a club that our enemies use, and we need to take that club out of their hands.
  Guantanamo Bay — the way it's been run has hurt the war effort.
  So if we're going to win this war, Judge Gonzales, we need friends and we need to recapture the moral high ground. And my questions are long that line.
  To those who think that you can't win a war without — with the Geneva Convention applying — I have another role in life, I'm a judge advocate, I'm a reserve judge in the Air Force. . . . Part of my job for the last 20 years, along with other judge advocates, is to advise commanders about the law of armed conflict.
  And I've never had a more willing group of people to listen to the law. Because every Air Force wing commander lives in fear of an air crew being shot down and falling into enemy hands. And we instill in our people as much as possible that, "You're to follow the law of armed conflict, because that's what your nation stands for, that's what you're fighting for, and you're to follow it because it's there to protect you."
  Now, to Secretary Powell. He took a position that I disagree with legally, but in hindsight might have been right.
  I agree with you, Judge Gonzales, to give Geneva Convention protection to Al Qaida and other people like Al Qaida would in the long run undermine the purpose of the Geneva Convention. You would be giving a status in the law to people who do not deserve it, which would erode the convention.
  But Secretary Powell had another role in life, too. He was a four-star general, chairman of the Joint Chiefs. And to those who think that the Geneva Convention is a nicety, or that taking torture off the table is naive and a sign of weakness, my answer to them is the following: that Secretary Powell has been in combat. And I think you weaken yourself as a nation when you try to play cute and become more like your enemy instead of like who you want to be.
  So I want to publicly say that the lawyers in the secretary of state's office, while I may disagree with them, and while I may disagree with Secretary Powell, was advocating the best sense of who we are as people.
  Now, having said that, the Department of Justice memo that we're all talking about now was, in my opinion, Judge Gonzales, not a little bit wrong, but entirely wrong in its focus, because it excluded another body of law called the Uniform Code of Military Justice.
  And, Mr. Chairman, I have asked since October for memos from the working group by judge advocate general representatives that commented on this Department of Justice policy, and I have yet to get those memos.
  I have read those memos. They're classified for some bizarre reason.
  But generally speaking, those memos talk about that if you go the road suggested, you're making a U-turn as a nation; that you're going to lose the moral high ground, but more importantly, that some of the techniques and legal reasoning being employed into what torture is — which is an honest thing to talk about, it's OK to ask for legal advice. You should ask for legal advice.
  But this legal memo, I think, put our troops at jeopardy because the Uniform Code of Military Justice specifically makes it a crime for a member of our uniform forces to abuse a detainee. It is a specific article of the Uniform Code of Military Justice for a purpose: Because we want to show our troops not just in words but in deeds that you have an obligation to follow the law.
  And I would like for you to comment if you could. And I would like you to reject, if you would, the reasoning in that memo when it came time to give a torturous view of torture.
  Will you be willing to do that here today?
I have enabled comments — as always, civil and respectful comments only.

Mike Morgan (mail) (www):
Comments at Volokh?

Graham's point is well made: that we can't torture people who are not classified as protected under the Geneva Convention, because it can come back to hurt our own troops. On the other hand, what is the purpose of having different classifications, if not to make use of the greater "interrogation" powers implicitly granted when dealing with a prisoner not protected by Geneva? Also, does he really believe that Gitmo or Abu Ghraib makes it more or less likely that a US POW would be tortured when interrogated aborad? I don't really believe so. Certainly, I think it possible that Gitmo or Abu Ghraib might make American soldiers more tempting targets when abroad, even if that "more" is of a minimal degree.
1.6.2005 9:51pm
Mike Morgan (mail) (www):
Just a quick suggestion: it would be really neat/helpful if the big green "volokh" banner at the top of the page were a link back to the main site.
1.6.2005 9:54pm
SupremacyClaus (mail):
The Senator is a lawyer. I strongly urge him to resign from the Senate, as well as from any position in the military. He is irresponsible.
1.6.2005 10:23pm
Mike Daley (mail):
Graham's grandstanding only confirms my belief that, regardless of what they claim their political philosophy is, most Republican Senators are more interested in having the MSM like them than anything else.
It's ok to be a Conservative when it's only CSPAN2, but when the MSM shows up they'll do what gets them the favorable press treatment.
McCain showed the way, Hegel followed and now there's no stopping them.
Freshman Sen. Cornyn was truly a breath of fresh air as he destroyed the Lefts "expert" witnesses. But, of course, this was long after the MSM had left to make their six o'clock news or whatever deadlines.
Mike Daley
1.6.2005 11:10pm
OrinKerr:
SC, Mike,

Would you care to elaborate on why Graham is "irresponsible" (SC's word) and merely "grandstanding" (Mike's)?

Also, Mike, I'm pretty sure it was Hagel following, not Hegel.
1.6.2005 11:14pm
noahp (mail) (www):
What no one talks about is Congress's role in ensuring that torture does not take place. The entire process of determining the conduct of wars, including the extent to which the US will abide by int'l law, has become entirely dependent on the will (caprice?) of the executive, and the President usually feels little responsibility to be transparent about matters of public interest. The result is situations like this.
There are few mechanisms for Congress to assert itself on issues involving the conduct of wars. So ultimately issues like this are at the discretion of the president, and Congress gets frustrated.
1.6.2005 11:42pm
Crime & Federalism (mail) (www):
Actually, noahp makes a great point. If the good Senators - and, we presume, the Representative - were so appalled with the tortue memos, why didn't they draw up a bill properly defining it? There's nothing that says the Geneva Convention is the sole law of war, is there? Why doesn't Congress enact an OLC-proof federal law against tortue? Since the President (supposedly) wants torture, but Congress is serious about fighting the issue, they could surely over the President's veto.

What am I missing? Why hasn't Congress enacted an OLC-proof tortue law?
1.7.2005 12:22am
James M. (mail):
I'm not familiar with the UCMJ, but I wonder if it's possible for authorized interrogation tactics to qualify as 'abuse' under the UCMJ.
1.7.2005 12:35am
Crime & Federalism (mail) (www):
James M, every year soldiers must have 8 hours of training in the "law of war." The JAG officers always told us that the UCMJ would prevent the conduct you describe. Indeed, I think that the prosecutions for conduct at Abu Ghraib arouse under the UCMJ. Anyhow, here's a link to the UCMJ, so that you can decide for yourself
http://www.au.af.mil/au/awc/awcgate/ucmj.htm
1.7.2005 1:01am
Greedy Clerk (mail):
Mike and SC, is it not possible that Senator Graham is merely expressing his honestly held views on the subject?

I'm sorry, but what has happened to this country when someone gives an eloquent speech like that about torture for God's sake, and one person says he should resign, and another just accuses him of grand-standing? I mean, perhaps, I could understand if you disagreed with him, but to deny that his view is even legitimate . . . What are we fighting for anyway? Perhaps I am the only one here who still believes in President Reagan's "City on a Hill."
1.7.2005 1:30am
Greedy Clerk (mail):
Fedster,

I think Congress already passed that statute long ago, it's the torture statute, and I think it clearly defines torture in a much broader fashion than was defined in the so-called torture memos.
1.7.2005 1:32am
Greedy Clerk (mail):
The Senator is a lawyer. I strongly urge him to resign from the Senate, as well as from any position in the military. He is irresponsible.

OK, this is sarcasm, right? It is a Senator's constitutional duty to give advice and consent, and you are asserting that he should resign for taking a certain position --- one that is wholly justifiable --- and then asking someone who the President of the United States has nominated to be the chief law-enforcment officer of the federal government and may not agree with that position about his view on the subject. This is "irresponsible." Sarcasm, right?
1.7.2005 1:38am
Fernando:
Setting aside the merits of senator Graham’s speech, and instead focusing on the general topic of the judicial and legal justification of torture of enemy parties under the jurisdiction of the US military, the following is worth the mention: one of the central reasons why the presently over exposed memos gained widespread support was due to the analysis set forth which classified Al Qeda members in non-national terms, hence Al Qeda members were thereby rendered non-patriots. That status placed such enemy parties beyond the classifications of the Geneva Convention. Hence the Geneva convention is not applicable, many held. But here is the rub. We can call this a sophisticated semantic game in virtue of the reclassifications. Or better yet, legalese trickery, abracadabra! We’re being asked to consider Al Qeda members as non-citizens on the grounds that such membership is founded upon a religious creed, however credible, that somehow transcends allegiance to any particular nation. But aren’t these enemy parties geographically tied in the same sense that we are? Do they not originate from some nation? Change the scenario by considering the following hypo: What would we do if a group of foreign born communists instead attacked the US in some 9/11 equivalent and we then imprisoned clearly identifiable members of the ideology responsible for the attack. Would we treat these members as non-patriots? Would we treat these members as non-citizens? Or would we treat them as common sense dictates, as citizens of some particular country who were persuaded by the winds of ideology? Under the hypo, the rules of the Geneva convention would likely apply.
1.7.2005 2:49am
Alex:
It is amazing how many intelligent people miss the point of the concerns of Graham and other honest patriots that disagree with what has happened to the image of the United States under the Bush administration. The worst examples of our eroding statue in the hearts of the world being Abu Gharib and the debunking of US claims on WMDs in Iraq.

There are three reasons to be worried:

1) The United States is not the world's greatest power just because of our economic and military might, but due to the "soft power" we wield as guardians of freedom and liberty in the world. How many small countries will start to drift into the influence of regional semi-superpowers (EU, China) due to the distaste this Administration has spread around the world? How many conflicts we will be pulled into in the next 50 years because the word of the US Sec of State is no longer taken at face value (Stevenson vs Powell)?

2) This is a war of perception, and the enemy is winning that war, because we are giving him victories. It is not nearly enough to point out that the people we are fighting in Iraq and elsewhere are brutal, theocratic thugs (which is obvious) but we are required to completely rise above their level. This is the trap Israel has fallen into; since almost every Palestinian terror attack is met with innocent collateral damage, the moral superiority of the democratic liberal Jewish state is not obvious, even in the West. We don't want to fall down that hole.

3) Doesn't right and wrong mean something? Isn't torture wrong? The entire idea of freedom is that there is an opportunity cost; otherwise everybody in the world would have a Bill of Rights. I find it disturbing that "conservatives" are willing to let the government go to incredible lengths (imprisoning Americans without trial, torture of enemy PoWs) as long as there is some possibility of saving American lives. These are the same people that (rightly) stand against judicial attacks against the 2nd Amendment, even in the face of data suggesting that fewer guns mean fewer deaths.

Innocent American civilians have and will continue to die because there are some things we are not willing to do; that is what makes America heroic in its defense of liberty. Parsing legalities to allow the abuse of people (even evil ones) under American control is NOT heroic, and in 30 years we will look back upon these days as a black spot in our defense of liberty.
1.7.2005 4:14am
SupremacyClaus (mail):
If there is a terror attack on our soil, the irresponsibility of the Senator will become self-evident to the defenders of the lawyer, and to the extremist proceduralists, here. This will be especially harsh when names are taken, and the second guessing, with Federal prison terms, begins.

As to perceptions of our nation, foreigners respect results. A fact trumps 1000 arguments. If Medieval torture is necessary and effective in an individual case, it should be permitted. A judge should be excluded from the loop. We do not want torture warrants. That is ridiculous attempt at increasing lawyer employment. (How about torture warrant appeals?) Let the adversary fear the American. The moral high ground is disrespectful and culturally insensitive. It says we are better than our adversary. There is no evidence to support that absurd idea. Torture is respect and cultural sensitivity. It is politically correct.

As to Israel's policy, it reduced terror activity. It is too soft. It will be more effective when it reaches out to eradicate the rich supporters of the terror campaign in other lands, right into their homes and families.

In French actions, there is no consideration of UN opinion, US opinion, nor anyone else's opinion. There is only violent furtherance of crass self-interest in the Ivory Coast, and any where it pleases. Everyone knows better than to waste their breath criticizing France. They don't care. They had no problem torturing and killing 1 million Algerians, until their cost outgrew their benefit. Then, they left. If Algeria had oil in 1959, there could have been 10 million deaths. Not a problem for France.

France is not lawyer whipped, as we are. The lawyer has made too many catastrophic policy mistakes in US history. It is too risky to our thin chances for survival. It runs 3 branches of government. It is on the verge of having to be fired. Resignation would be nicer.
1.7.2005 6:09am
JAG Captain:
SupremecyClaus' love of lawyers notwithstanding, here's the perspective of a military lawyer familiar with interrogations and Abu Ghraib:

1. Sen. Graham's comments are typical of the Air Force and Navy. They do not hold the ground and they do not take prisoners -- they get taken prisoner. They are much more concerned about reciprocity and treatment of their people. Post-Vietnam experience has not favored the idea of reciprocity, however. During the Defense Department debate between the various services on interrogation policy development, it was the Navy and Air Force who were arguing the ICRC perspective. You can see this as well with former Navy TJAG John Hutson testifying against Mr. Gonzalez.

2. The MSM and Gonzalez critics have confused themselves beyond recognition in their discusson of interrogation and torture policy development. Obviously, the administration is looking for a broad perspective of what is allowable within the interrogation booth. The problem is that the ICRC definition of allowable interrogation ("name, rank, serial number only") is too narrow. The administration, in developing policy, had the responsibility to ask its lawyers at the OLC to determine under the Geneva Conventions (where applicable) and the Torture Convention/Statute where a more reasonable definition might be found. It is obvious that OLC went to the other extreme and took a radical legal approach to where the boundary between torture/non-torture exists. But they did set a marker from which the administration could create an effective and rational policy which followed the law. The administration rejected the OLC perspective and took a more reasonable approach of "Taliban/Al Qaeda do not get Geneva Convention protections as a matter of law, but will get limited protections to the greatest extent operationally possible." This decision applied to detainees in Afghanistan and GTMO. When you get to Iraq, there is no question that the Geneva Convention, or at least some sort of minimum standard of treatment absolutely applied. Individuals who take the Seymour Hersh line that a clear line can be traced from the WH to Abu Ghraib are flat out wrong. There is no evidence that policy makers were looking to get authority to torture; rather, they were looking to establish interrogation methods that were effective but weren't torturous. What is clear is the lawyers and policy makers in both the Pentagon and Iraq couldn't decide what constitued non-torturous, non-coercive interrogation techniques, and that the fog of war at AG and pathology of a couple MPs led to the perfect storm that later developed. The Fay Report, the best analysis of interrogation abuses at Abu Ghraib, was clear that there were abuses (none of which involved the infamous photos), but that they came about because of local leadership and moral failures, not policy pressure from Washington. Nowhere have I seen that the discussions taking place at OLC or the WH affected interrogations in Iraq.

Finally (sorry for the long post), as a lawyer, Sen. Graham should know the difference between competent legal advice and "playing cute with the law." The War on Terrorism has created new legal issues that we are still working through, but any good lawyer will tell his/her client where the full boundaries of the law are, and sometimes those boundaries may not be obvious. Oh, by the way, there is no provision in the UCMJ for "detainee abuse" -- rather, there is an Article which proscribes "cruelty or maltreatment" which has traditionally been used in sexual harassment cases, but which might apply to detainee abuse.
1.7.2005 8:28am
JAG Captain:
One other comment for Fernando:

First, no government official has sought for or announced a legal justification to torture. They have sought to define what is not torture in order to provide interrogators a framework from which they can operate. I can tell you positively that we are looking to operate in an appropriate manner with an intransigent enemy combatant while trying to respect our international commitments.

Second, defining the legal status of Al Qaeda is not a mere semantic game. We do not care about the religious creed (if any) of its adherents, or their patriotism. The law is clear about who gets combatant immunity for their actions on the battlefield, as well as preferential treatment when captured/detained. The Geneva Conventions say that an enemy combatant for whom the GC on the Treatment of Prisoners of War (GPW) applies must meet these four criteria:

1. Under a chain of command.
2. Having a fixed distinctive sign recognizable at a distance.
3. Carry arms openly.
4. Conduct their operations in accordance with the laws and customs of war.

The international community in 1977 tried to update this definition to include guerillas and insurgents, but the United States took exception to this change and does not recognize any legal combatant definition other than the 4-part test above.

If you can tell me how Al Qaeda gets full GPW treatment under this definition, please let me know.

The problem we've had is that if the GPW doesn't apply, what is the standard of treatment? The administration clearly rejected the "nothing applies" standard, but applied a more flexible approach. At the end of the day, the 4th Geneva Convention (Protection of Civilians in Time of War), the Torture Convention, and possibly even Common Article 3 of all four Geneva Conventions would apply. And even more, both the President and Joint Chiefs of Staff have told the military over and over again, even where no Convention applies, we will treat these yahoos with the greatest amount of protection feasible.

So, the problem with treating detainees did not start at the top of the heap with fancy lawyers engaged in "trickery" -- it started, as always, with a couple of soldiers in the heat of battle, frustrated with their conditions, forgetting that the rules apply even in combat, and some of them losing their moral compass. We'll deal with that, move on, and accomplish the mission.
1.7.2005 9:02am
mrsizer (www):
Re: Grandstanding.

Mr. Grahm's "question" was all about himself. That's grandstanding.

Re: The memos.

Am I missing something here or was Mr. Gonzales assigned the task of determining what was _possible_ under the law. He was not assigned the task of determining US policy. He was not assigned the task of implementing anything. He was not assigned the task of determining the moral value of the law. He was assigned the task of determining the LIMITS of the law.

He should be judged on his success or failure of that task; NOT whether we approve of the result - he didn't write the laws he was examining.

Not being a lawyer (or even playing one on TV), I thought that's what lawyers, at least defense attorneys, did: "play cute" with the law to prove that even though their client may have done something a bit "iffy" it wasn't actually illegal.
1.7.2005 9:03am
David Chesler (mail) (www):
The Senator alludes to a greater point when he talks about "playing cute", one that has come up a little in these discussions.

We are Americans. We don't do nasty stuff. We're the guys that ride in and give toys and chocolate to the children, and get flowers and kisses in return.

While it is proper to ask "Can we legally do this?", many of us are uncomfortable not only with the torture question, but with the Guantanamo detainment in general, because we see it as acting nastier than we have to act. We are not a nation on a wartime footing dealing with hundreds of thousands of German and Japanese POWs. No matter the current chaos in Fallujah, we have the luxury of the resources that giving all detainees, regardless of status or location, proper legal counsel, timely hearings, and so forth would not strain us.

Speaking as an otherwise uninvolved and uninformed patriotic American, that's my concern: Are we acting the way Americans should act?
1.7.2005 10:05am
Seamus (mail):
"Mike and SC, is it not possible that Senator Graham is merely expressing his honestly held views on the subject?"

Indeed. If Graham were indeed "more interested in having the MSM like them than anything else," he wouldn't have taken on the thankless task of being a manager in Bill Clinton's impeachment trial.
1.7.2005 11:04am
Fernando:
Reply to JAG Captain:

Legal interpretation of the Geneva Conventions did commence from the higher levels of the administration. In fact, the analysis supporting the use of tactics to gain information, tactics most in legal communities would clearly render torturous--the administration and its legal supporters notwithstanding--, originated from the administration’s most rigorous legal experts. Mr. Gonzales conceded to all this. In fact, to speak of originators, take a look at the articles published by Mr. Yoo. (Talk about fancy lawyers!) And the analysis to permit “tactics to gain information,” a euphemism out of courtesy, passed along the chain of command to CIA agents who had in their possession terrorists. So, the tactics under dispute weren’t simply conducted by military personnel in the battlefield. The tactics were rationalized from on top, and implemented by various pentagon channels.
1.7.2005 12:05pm
Tony the Pony (mail):
George Fletcher has written some good summaries of this; the laws of war, prior to Nurenberg, mostly amounted to the steps soldiers had to take to ensure that they would be immune from individual punishment. Wearing uniforms, cessation upon surrender, open arms, &c. Such protections clearly do not, agreed, apply to al Qaeda. They're criminals, not soldiers.

But they do apply to Iraqi and Afghan soldiers. And other protections apply to civilians. So in the absence a perfect system to know ex ante who's been naughty and nice, the nonapplication of the laws of war doesn't resolve very much. You must treat prisoners as either combatants or as civilians until you determine that they were, in fact, enemy combatants, and then you can treat them differently. (The difference in treatment, it seems to me, is exhausted by the permissibility of punishing them for, if conducted by soldiers during open war, could not be punished.)

Yet I keep encountering arguments that Geneva doesn't apply to al Qaeda. So I suspect there may be more to what such arguers think they're saying, at least, that I'm just not getting.
1.7.2005 12:13pm
Greedy Clerk (mail):
Not being a lawyer (or even playing one on TV), I thought that's what lawyers, at least defense attorneys, did: "play cute" with the law to prove that even though their client may have done something a bit "iffy" it wasn't actually illegal.

Big difference between an ordinary defense lawyer who has undivided duty of loyalty to a single client, and white house counsel whose loyalty is to the office of the Presidency and to the United States of America more generally. His loyalty is not to George W Bush the man. Clinton got taken to task by conservatives for not making the distinction---now it appears the show is on the other foot.
1.7.2005 12:49pm
Crime & Federalism (mail) (www):
"I think Congress already passed that statute long ago, it's the torture statute, and I think it clearly defines torture in a much broader fashion than was defined in the so-called torture memos."

Greedy, I realize this. But after the memos came out, all Congress had to do was repudidate, by statute, any interpretations contained in the memos, e.g., by saying that the interrogator need not have the specific intent to inflict pain or serious injury to violate the torture statute. Given all the hot air politicians devoted to the torture memos, I can't imagine they lacked the time enact (or, if necessary, reenact) something.
1.7.2005 12:55pm
Andy Freeman (mail):
Graham wrote "Because every Air Force wing commander lives in fear of an air crew being shot down and falling into enemy hands."

Is there any reason to believe that not torturing suspected bad Iraqis actually leads to better treatment of US POWs?
1.7.2005 1:23pm
JAG Captain:
Fernando:

Discussion of what should be legal interpretation took place at the highest levels, which appeared to be a robust exercise. What people miss is how national policy discussion translated into national policy prouncements and implementation at the "user" level. The Schlesinger Report showed that, whatever was in the torture memo discussions between the WH, DOJ, and OLC, the final policy was one of no torture and Geneva Conventions application for Al Qaeda as a matter of flexible policy, not a matter of law. When we, on the ground, implemented what we thought were appropriate interrogation techniques, the issue was not these torture memos or high-level discussions, just the application of methods and techniques allowed by the Pentagon -- policies which are reasonable and appropriate and none of which involved torture. Those who we have to found to have deviated from applicable policies (stripping detainees naked, use/misuse of dogs, beatings) were dealt with and we're still dealing with them.

Take a look at pages 110-112 of the Schlesinger Report to see exactly what the national policy was and which interrogation methods were approved. The methods, for the most part, are unpleasant, but are nowhere near torture.
1.7.2005 1:36pm
Crime & Federalism (mail) (www):
"Is there any reason to believe that not torturing suspected bad Iraqis actually leads to better treatment of US POWs?"

Think back to Gulf War I. Our POWs were beaten up (we remember the solders with black eyes being videotaped), but not beheaded or shot in the head like animals. That's not to say that the recent bad treatment isn't caused by other factors, e.g., we're now an occupying army where as in the GWI we were in and out, but it is relevant.

And given that the pro-torture crowd wants to do something that moralists believe is inherently wrong, and that people who actually understand military methods thinks is ineffectual, the burden is on the pro-torture crowd to make the case for torture.

I know at least 30 Army officers. None of them support torture, and most of them have been shot at several times or lost friends. The Army's position (not given a wink-and-nod) has been that torture is morally wrong and tactically unsound. People like Phil Carter who devote their lives to military methods disagree with torture.

I don't think appeals to authority are particularly powerful. But Hume's maxim that "extraordinary claims require extraordinary evidence" seems particularly on point. Those arguing for torture are making an extraordinary claim, and yet they are coming with nothing but a priori assumptions about warfare and human behavior.
1.7.2005 1:47pm
DBL (mail):
A few thoughts:

Thanks for the link to the UCMJ. I don't read the UCMJ to apply to non-US military prisoners at all. It applies to interrogation of US military personnel who are arrested for criminal conduct. I don't know what the hell Sen. Graham was talking about.

Second, it seems to me that the question is whether or not our military and intelligence forces are to be permitted to interrogate captured "irregular" combatants at all, and if so, how much pressure they can use. The Democratic Party position, I take it, is that no interrogation is permitted beyond name, rank and serial number (the Geneval Convention standard for POWs). That position seems to me to be completely irresponsible and one that the Democrats would certainly not be taking if a Democratic president were in the White House.

The much tougher question is how much pressure can be used in these interrogations? I think every responsible person who has thought about these things agrees that permanent physical injury (mutilation, pulling out fingernails) is unacceptable, along with extreme physical pain (bamboo shoots under fingernails, electric shocks). Most people would call either of those "torture."

But what about physical discomfort? What about keeping prisoners up for 24 hours at a time, playing Motley Crue at high volume? What about giving rewards (good food, female companionship) for cooperation (which would be forbidden by the Geneva Convention)? What about slapping or shouting in the prisoner's face? What about "good cop, bad cop" interrogations? What about threatening grievous injury or pretending to injury or kill another prisoner to scare the one under interrogation (remember that great scene from "The Untouchables" where Sean Connery scares one punk by shooting another, already dead one, in the mouth?) I think that some form of pressured interrogation is just fine, but the tough question, one that serious people try to answer, is where to draw the line. Non-serious people (like Amnesty International, Andrew Sullivan and most of the the Democratic Senators) just say all of the above constitute "torture" and are forbidden.
1.7.2005 2:03pm
Greedy Clerk (mail):
The Democratic Party position, I take it, is that no interrogation is permitted beyond name, rank and serial number (the Geneval Convention standard for POWs).

The Democratic Party does not have any official position on this, and neither does the Republican Party. This is not a partisan issue. Lindsey Graham, quoted above, is a Republican. Alan Dershowitz is a Democrat, and he has taken strongly pro-torture positions. Stop trying to turn this into a partisan issue, it is not helpful and distracts from the discussion on the merits.
1.7.2005 2:18pm
Crime & Federalism (mail) (www):
"Second, it seems to me that the question is whether or not our military and intelligence forces are to be permitted to interrogate captured "irregular" combatants at all, and if so, how much pressure they can use."

I like this formulation. For me, it raises two issues. First, do the things you describe lead to reliable intelligence? (Those tactics certainly lead to brain-washing, though as was demonstrated in the American POWs in the Korean War, subtlety is best). If torture leads to intel, then should we criminalize it? I might argue that if it lead to intel (and thus will prevent attacks), then let's use it. After all, if we're choosing between harming a member of al Qaeda or saving American lives, then I choose America.

Second, what level of effectiveness must "pressure" have before we should allow it? In other words, what's the balance between harming an enemy and preventing harm to Americans? If really nasty torture (thumb screws, bamboo shoots, pulling out teeth, electric shock, even removing limbs) would cause us to kill one al Qaeda but lead to intel that would save one American life, is that a proper balance?

I don't have any moral qualms against applying some of the "pressure" you mention - if it works! If someone could prove to me that torture (and I mean the really nasty stuff) is effective, then I might not be anti-torture. The problem is that no one has come forward with this evidence.

I would love for someone to refer me to an article (Weekly World News doesn't count) telling us what level of "pressure" is needed to exact reliable information.

If no one can prove that torture leads to intel, then aren't they really saying that it's okay to harm people who surrender to us, or who we capture, because they are our enemies? That position seems like pretty low ground to me.
1.7.2005 2:34pm
TH:
Has Alberto Gonzales ever endorsed torture?

It is my understanding that this whole fiasco is over memos on the question "Does the Geneva Convention apply to Gitmo detainees?" Gonzales' believed that it does not. Link:
http://msnbc.msn.com/id/4999148/site/newsweek/

Understand that this is not the same question as "Should we torture the Gitmo detainees?" or "Do you (Mr. Gonzales) approve of torture?" I could be wrong about Gonzales' other statments, but I this is just position paper which does not actually endores torture at all. Why is Gonzales being destroyed for giving an honest answer to a legal question?


OrinKerr wrote: "Would you care to elaborate on why Graham is "irresponsible" (SC's word) and merely "grandstanding" (Mike's)? "

How about these quotes from the Senator:

"I think we've dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law."

Who was playing cute with the law? Mr. Gonzales gave an honest response to a delicate legal matter and is being slammed for it because it's not the answer some people wanted to hear. It seems to me that Senator Graham is the one being cute by twisting Gonzales's legal writing and claiming it was his personal opinion.

"I have yet to get those memos... I have read those memos. "

Maybe this was mistyped or just one of those speaking quotes that doesn't look right when transcribed.

"But generally speaking, those memos talk about that if you go the road suggested, you're making a U-turn as a nation."

I too am against torture, but I doubt it would destroy all the great things about this country and cause a "U-turn" for the nation.

"You should ask for legal advice."

?

"But this legal memo, I think, put our troops at jeopardy."

Does he honestly believe that a memo is dangerous to our troops? The President had a legal question, and Mr. Gonzales answered it. If there is any danger caused to the troops it must be from the laws of the convention or the actions of The President, but not from the writing of Mr. Gonzales. This is grandstanding.


Greedy Clerk wrote:
"what has happened to this country when someone gives an eloquent speech like that about torture... I could understand if you disagreed with him, but to deny that his view is even legitimate ."

Doesn't this also apply to Mr. Gonzales? Again, I could be wrong, but as I understand it, all he did was examine a question of law. Yet he is being killed by the press and Senate as though he had tortured someone himself. He didn't even "give an eloquent speech." He just wrote a memo. You should be similarly outraged that people would like "to deny that his[Gonzales's] view is even legitimate ."


Does anyone have links to Gonzales personally endorsing torture?
1.7.2005 3:04pm
fling93 (www):
Is torture even effective? I've always figured that information extracted under torture is completely unreliable because people will say anything just to get it to stop. And 9/11 didn't happen because of lack of information, but because we had too much information and misinformation to wade through.
1.7.2005 3:48pm
Bob (mail):
Maybe Senator Graham should ask Senator McCain how the Geneva Conventions protects POWS. The fact is that AG was only half right in his memo. The Geneva Conventions are quaint. The correct recommendation would have been to withdraw from them. They have failed to provide any protections in Korea and VietNam (or in the Pacific part of WW2). Neither would they protect any POWS brought before Bin Laden. They are worse than useless. To the extent US POWS are protected in war, it is by the enemies fear of US retribution.
1.7.2005 4:31pm
RHSwan (mail):
Alex
Your right, the prestige of the US has fallen off a wall. But is it because of what we have actually done or is it for other reasons. The standard the US is required to uphold is next to impossible to keep and no other country with the possible exception of Isreal or the UK is required to hold. Any fault is magnified, any positive achievement is downplayed. Our enemies can do anything no matter how vile and in many cases nobody says anything. We bump against a wall and nothing we say can make up for it.

This was the way it was in the 1980's while Ronald Reagan was President. If you listened carefully, this was the way it was during the 1990's (Everybody like Bill Clinton, but people complained about us even during his Presidency, just not so loudly). And it is that way during this decade.

You are also right we are losing the war of perceptions. Unfortunately for us perceptions are not reality and the reality is far different from what most people perceive. Our enemies have been propagandizing the world for over fifty years to perceive the worst from us and any time we try to correct a misperception a huge outcry from our critics occurs.

I don't know how how to change this. In too many cases we are in a dammed if we do and dammed if we don't situation. Nothing we do satifies our critics. Just look at the recent disaster. President Bush didn't get in front of the microphone fast enough. We didn't provide enough money fast enough. We didn't coordinate with the right people. The fact we did far more than most and we aren't done doesn't matter.
1.7.2005 4:46pm
SupremacyClaus (mail):
Greedy: I responded to Sen. Graham's sincere views with mine. I respect his views. I doubt he would reciprocate if he heard mine. He got emotional, unlawyerly, bullying with Mr. AG designate. He demeaned his offices.

I did not advocate any substantive action against the good senator. Come the next terror attack on our soil, that is the time to enforce the highest law, Necessity.
1.7.2005 11:03pm
Andy Freeman (mail):
> Think back to Gulf War I. Our POWs were beaten up (we remember the solders with black eyes being videotaped), but not beheaded or shot in the head like animals.

Does that trump more recent experience in Iraq?

Are all opponents indisguishable in this respect?
1.7.2005 11:49pm
thedaddy:
Lindsay Graham has become a twit, I say this because he is trying to make a name for himself by saying outrageous contradictory things.

What he said would have merit in a perfect world. Nothing that we do to in the care and treatment of enemy prisoners has ever redounded to the benefit of our guys at the hands of their captors. His argument is a straw dog and worthy of contempt for its vapidity.

That being said we should still conduct ourselves in war accoring to OUR standards and not those of what the rest of the "civilized world" think should be our standards. Mr. Gonzales it seems to me was doing just that- determining what was part of our standards and what was not.

President Bush then took this set of limits and determined as COMANDER-IN-CHEIF what subset he thought was appropriate to authorize for use in situations where detainees were not covered by rules contained in treaties because they fell outside the covered classes. Sounds like absolutely spot on first class management of a very difficult situation to me,

What's the Beef with Gonzales?
Who does Linsay Graham think he is with his self serving pontification?
1.8.2005 11:37am
Untrained Observer (mail):
This whole buisness in the middle east is a never ending cycle. Further more this action that the US is now engaged in is a starcrossed plan if ever there was one. The best thing I could think to say about it is that what we are doing, while being an awful solution, is many times better then any other approach tried to date. My only problem with the senators remarks is that he has nothing to replace them with.

Its all cheese and crackers to take a shot at AG the future AG. Heck we pay congressmen to raise points and make debates on vital issues. Ill also admit something else. This isnt like LBJ railroading Leeland Olds in the fifties, and this isnt a Borking, or Clarance Thomas and the Anita Hill thing either. I respect the tone of the remarks of the senator but find them hollow.

If it is true that we weilded the "Soft Power"(Comment made by ALEX) of being the protector of democaracy and human rights for many years before this, how come it seemed to have done so little good. It wasnt like it was roses from the UN and Free Barrel of Oil with Purchase from Saudi Arabia before we did all this. In fact it was quite the opposite. It was bombings and Beirut barracks and protests in the "Arab Street". Either way I think we are long past the notion of trying to win the hearts and minds without first destroying the underlying problem.

That problem is the lunacy that has gripped an entire people during a key and unstable moment in our history. The widespread acceptance of the more extreme ideologies in islamic religion are killing any discussion about higher values. We have seen this before in World War II with the Germans and The Japanese, during the Cold War ad we fought the Soviets, and earlier during the time of Napoleon and the vicious wars started by France. Everyone sometimes has a rought year and gets a little to big for their britches and has to be dealt with. The end results can be very promising. The Germans and the Japanese are so peaceful they are almost pacifist, as well as doing ok by most other standards, the same goes for the French, and to the extent they live in a representitive government so are the Russians. Lately this mission of restraining a country has been done by the US but it hasnt always been, as Wellington himself, or the fleet of ships at Trafalgar could attest to. Weather it is the Greeks containing the Persians, or maybe even the Germanic hordes collapsing the rotted hulk of the Roman empire, when contries get too far into conquest and bloodshed, a power has to arise to bring them back down to earth.

So now that I am way off track where was I going with all of this? I feel this current adminsitraion is somethnig like the Ajax the warrior from the Illiad, (not the kitchen clenser). Maybe even something like Patton if you well. This adminsitraion is a response to a threat and at a cusp in world history is the one leading the struggle against and cruel and intemperate force threatening to unwind five hundred years of social progress. If we can contain, break, and scatter into the wind the disease of islamofacism then the price will have been worth it. Its true that both Ajax and Patton, when the fighting was done, seemed useless and outdated. This was their fate for being so perfectly suited to fight a problem and then destroying the problem and invalidating their own existance.

Ill close with one final high fallutin metaphor. The highest ground in this planet, Mt. Everest, is so high it cant suistain life. It is a cold and desolate place you can only visit with extreme training and preperation, and even then, when you mess up and die, they leave your corspe frozen to the mountain as a grim and silent reminder to people who will follow you. Sometimes the high road leads you to pretty places you cant stay at for very long.
1.8.2005 1:29pm
Fernando:
Mr. Gonzales said that he was "deeply committed to ensuring that the United
States government complies with all of its legal obligations as it
fights the war on terror, whether those obligations arise from
domestic or international law.""These obligations include, of course, honoring the Geneva
Conventions whenever they apply…" It’s at times like this that the members of the Senate Judiciary Committee can do a great service to the American people by probing just what Mr. Gonzales means by “whenever they apply.” Such a probe, along with the right questions can lead to further explanations about the concept of ‘enemy combatants’ and whether or not Mr. Gonzales condones or did once condone torturous activity. But you don’t get that kind of committee, with that type of questioning. Best to keep the questions on the surface? And assume some neutral meaning, one that does not entail the Yoo argument for torturous tactics against terrorists? On a more charitable reading, the Senate Judiacry Committee conducted a wise hearing by doing just that. International eyes are firmly set on the context of the hearing, and it’s in the nation’s best interest to move to the higher moral ground that Senator Graham alludes to, rather than to castigate a worthy candidate caught between “a political hard place and a rock.” The difficulty is that if we fully expose Pandora’s box, the nation’s international moral stance is jeopardized. Best to keep the box shut, but allow some exposure, keeping discussions very parochial, so that no “Geneva Conventions U-turn” takes place.
1.8.2005 4:22pm
Doc Rampage (mail) (www):
I would have a lot more respect for these anti-"torture" speeches if the speechifiers would (1) spell out what they consider torture and (2) show that they have considered the consequences of announcing that terrorists cannot be interrogated with any methods they consider torture.

Information acquired through intimidation, threats, and harsh physical treatment can save lives and can save other people from being actually tortured (in contrast to the relatively minor abuse that administration critics are so exercised about).

These grand political statements about not wanting to be "like the terrorists" strike me as the height of self-destructive idealism. If your enemy is willing to kill, you have to be willing to kill also or you will die. If your enemy carries out a war of subterfuge against you, you have to be willing to do whatever it takes to uncover the subterfuge or you will lose. In both cases it is the enemy who choses the level of violence, not you. Your only choice is to survive or to allow the enemy to prevail.
1.8.2005 10:53pm
Registered Democrat:
Lindsey Graham for Attorney General! He, at least, gets the biggest issue right.
1.9.2005 11:08am
sbw (mail) (www):
The hearings on Alberto Gonzales' appointment to become Attorney General would have been more focused had Senators explained, up front where moral frameworks come from -- from people with a sense of time and their place in it, who can project the consequences of not having them.

Without moral frameworks people revert to the level of others in the world of nature -- governed by the rules they must live by and nothing more. A seal that snips off the fins of a fish (leaving it as a terrified, living, helpless toy to be batted around until boredom and hunger make it lunch) has no conception of good and evil. Good and evil don't exist in the world of seals and fish. They live outside the framework of morality, which is purely a creation of thought.

People choose whether or not to receive protection from the framework by their actions. Violators of the framework, living just by the laws of nature, are unprotected -- exposed to any action those within the framework choose to use to defend themselves. That's how nature works.

Although those under the protective umbrella of morality can use any means against outsiders, often it is not to their advantage to do so. Powerline reminded us that President George W. Bush reaffirmed this position on February 7, 2002.

Twenty-five years ago I wrote about this. Nothing has changed since then.
1.9.2005 11:24am
Jaclyn (mail):
The whole Iraqi war and the primitive, barbarian acts committed by both sides is just totally incomprehensible to me. (Every time Bush gave a campaign speech about the wonderful things the US is doing in Iraq, there should have been a video running behind him of the decapitation of prisoners of the insurgents. Sort of a way to bring "reality television" into the 21st Century.) Even more incomprehensible is that any American would write a position paper on ways to get around the laws governing war-time conflicts between nations to allow "torture;" that is, to allow Americans to become as barbaric as our enemy supposedly is. But the most incomprehensible part of this whole scenario is that "we" the people are even considering Gonzales, the guy behind the memo, for a position of power within our government, a position that will ultimately put him in power over those within and outside of our own borders. I, for one, really don't want him in that position. Doesn't anyone wonder why all these reports and memos keep "leaking" out to the press and the public? Does anyone really think it's all just a matter of "loose lips?" Could be it's precisely because the Army, CIA, FBI, Justice Department and all other holders of leaked reports has leaked them because they are as disgusted/frightened/sickened by the direction they see the Bush administration leading America and they just don't want to go that way themselves. Sort of a cry for help for someone to put a stop to what's beginning to look like a fascist regime.
1.10.2005 11:45am
Belac (mail):
Could we decide (and then put to rest) the debate about whether torture works? Doc Rampage is saying that torture can save lives, while fling93 disagreed earlier.

It seems to me that this is the crucial point. While the moral arguments are important, if torture is ineffective than it should not be used, whether it is right or wrong. So I ask:

Have we gotten any useful intelligence out of the prisoners we've held underwater, stripped naked, pretended to send to Egypt, tied up in hot rooms 'til they pulled out their hair, good cop/bad cop'ed, beaten up, or any of these other techniques? If we've gotten information that saved lives or prevented terror attacks, then by all means go on with the main debate. But if these techniques have proven useless, then they should stop immediately.

There is no reason whatsoever to do a moral evil that does not provide a practical good.
1.12.2005 1:32am