Jewish World Review Jan. 7, 2005 /26 Teves, 5765

Rich Lowry

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The real Gonzales fight | The confirmation hearings for Al Gonzales' nomination as attorney general ostensibly are about his suitability for the job. But the real issue is how we conduct the war on terror. Are terrorists soldiers, just like any other? Do we have a right to pressure them for information upon capture? The Democrats' answers are, by implication, "yes" and "no" respectively. Which is why the Bush administration should welcome a big, high-profile fight over this nomination.

At issue are two legal documents. One was authored by Gonzales, then the White House counsel, about the Geneva Conventions in January 2002. Reports always quote him as writing that the Geneva Conventions are "obsolete," as if he was unilaterally disavowing a U.S. treaty commitment. Not so. What he said was that Geneva does not apply to the members of a transnational murder gang. The conventions were crafted in the mid-20th century with conventional armies in mind. The idea was that members of such armies were guilty of nothing, and so should be afforded protections to make their captivity as comfortable as possible. Among those protections were that prisoners of war wouldn't be subject to interrogation.

This is the nub. Those who believe -- apparently as a theological matter -- that Geneva applies to al-Qaida must believe that its terrorists are entitled to dormitories, sports equipment, pay allowances and pretty much anything you remember from "Hogan's Heroes." Most importantly, they can't be interrogated. This would kiss goodbye to the kind of intelligence that has led to the capture of important al-Qaida leaders.

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All of this would be absurd. So, what Gonzales actually wrote is that the war on terror "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, script (i.e., advances of monthly pay), athletic uniforms and scientific instruments."

Democrats who oppose the Gonzales reading also must, logically, oppose the interrogation of members of al-Qaida. Maybe they figure that terrorists will be so pleased with the soccer fields and scientific instruments we provide them that they will voluntarily offer up everything they know.

Back in the real world, CIA agents were worried about how far they could go in pressuring al-Qaida captives to talk. Their questions prompted the so-called torture memo, commissioned by Gonzales and written by the Justice Department's Office of Legal Counsel in August 2002. Although one would never know it from reading the press, the department's lawyers adopted the definition of torture contained in the Convention Against Torture and Congress' Section 2340 of the congressional anti-torture statute.

Nonetheless, language in that memo arguing that interrogators have wide latitude before running afoul of prohibitions against torture is said to have led to the abuses at Abu Ghraib, in particular the horrific pictures. But an independent panel lead by James Schlesinger concluded that "the pictured abuses were not part of authorized interrogations nor were they even directed at intelligence targets." Abu Ghraib ringleader Spc. Charles Graner abused prisoners as a guard here in the United States. Are we really to believe that his misconduct in Iraq was guided by what the Office of Legal Counsel might or might not have concluded in a heavily footnoted 50-page advisory legal memo?

At Abu Ghraib and Guantanamo Bay there have been unauthorized abuses and acts of torture, but these aren't the same as the sanctioned interrogation methods (e.g., making prisoners assume "stress positions"), which are tough, but appropriate. The former should be punished; the latter are necessary to fighting a war in which intelligence is paramount. Some perspective: According to the Schlesinger report: "Since the beginning of hostilities in Afghanistan and Iraq, U.S. military and security operations have apprehended about 50,000 individuals. From this number, about 300 allegations of abuse in Afghanistan, Iraq and Guantanamo have arisen."

In the Gonzales fight, Democrats make, once again, their lack of seriousness in the war on terror plain. The Bush administration should relish waging the battle for its nominee.

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© 2004, King Features Syndicate