Senate Democrats and other opponents of President Bush’s nomination of Alberto Gonzales for U.S. Attorney General have alleged, in harshly personal terms, that Gonzales somehow undercut the Geneva Conventions by issuing a legal opinion that, even though all combat detainees must be treated humanely, the privileges and immunities granted to uniformed soldiers held as prisoners of war do not extend to terrorists and other unlawful combatants captured by U.S. forces in Iraq and Afghanistan.
What this criticism ignores is that a long list of unbiased analysts have reached the same conclusion, including: three different federal courts; the 9/11 Commission; an independent review panel led by former Defense Secretary James R. Schlesinger; and a group of former State Department legal advisers, judge advocates general, military commanders and liberal international law scholars who filed a brief in a recent U.S. Supreme Court case.
The Geneva Conventions, ratified by the U.S. Senate, specifically exclude extending P.O.W. protections to unlawful combatants — i.e., to those who violate the laws of war, do not wear uniforms, and do not operate under a responsible command structure. Does any reasonable person doubt that Al Qaeda fits this definition?
Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman, eloquently states the obvious in noting that Al Qaeda does not meet the test of lawful combatant:
“Since the early 1990s, al Qaeda has, at the very least... urged the murder of all Americans — civilians and military alike — wherever on the globe they may be found; conducted simultaneous sneak attacks on the American embassies in Kenya and Tanzania, resulting in the mass murder of over 240 civilians (the vast majority of them Muslims and non-Americans); murdered 3,000 Americans in hijack attacks on the World Trade Center and the Pentagon; and spearheaded guerrilla wars in Afghanistan and Iraq.
In addition to killing civilians in sneak attacks — commonly, detonating bombs within nondescript cars parked or driven in broad daylight in densely populated areas — they also secrete themselves among their once and future victims. They wear no distinguishing insignia to segregate themselves as a militia. They use mosques and schools and hospitals to plan and store weaponry. They feign surrender and then open fire on unsuspecting coalition forces attempting the civilized act of detaining, rather than shooting, them. As for treatment of their own detainees, their practice ranges from execution-style homicide to beastly beheading — usually captured on film and circulated on the Internet.”
In applying these realities to the clear terms of the Geneva Conventions, Mr. Gonzales was simply doing his job.
It’s worth considering the extensive privileges that the Geneva Conventions afford honorable combatants. They include athletic uniforms, scientific instruments, kitchenettes and “a monthly pay allowance in Swiss francs,” as Lee A. Casey and David Rivkin Jr. have noted in the National Review. Moreover, questioners are not even allowed to entice such detainees to cooperate by offering creature comforts or other preferential treatment (which is, of course, standard operating procedure in police stations across the United States).
Worse, as my colleague Sen. John Cornyn of Texas pointed out at Gonzales’ confirmation hearing last week: “Because the convention prohibits the holding of detainees in isolation, Al Qaeda fighters would be able to coordinate with each other. And POW status even confers broad combat immunity against criminal prosecution before civilian and military tribunals alike. Surely no member of this committee actually believes that an Al Qaeda terrorist deserves to be treated better than an American citizen accused of a crime!”
Mr. Gonzales has served well as White House counsel, and he clearly is competent to serve as Attorney General of the United States. He shouldn’t be attacked for rendering correct legal advice to the President.