Why It Matters Who Interprets the Law

In a comment responding to my letter to Senator Boxer concerning the nomination of Judge Alberto Gonzales to be Attorney General of the United States, I was asked about my view of a recent piece in the National Review Online by Professor Douglas Kmiec of the Pepperdine School of Law. I had glanced at Professor Kmiec's essay yesterday; the comment prompted me to read it. While responding to everything that Professor Kmiec writes would be a full-time job (even as professors--and lawyers--go, he is, shall we say, prolix), and not a job that I would want, it seems worth it to address his comments on torture. Professor Kmiec demonstrates what I think is wrong with the defense of the Bush Administration's "war on terror" and, especially, the treatment of detainees in the "war on terror." Conservatives ought to be concerned about the accumulation of unchecked power in the hands of the executive like that which has occurred since the beginning of the "war on terror." Conservative law professors ought to be concerned about imaginative interpretations of law designed to support pre-ordained policy positions. Professor Kmiec's loyalty to the President seems to be more important than his conservative principles. And so, like many conservatives today, he condones loose interpretations of law that lead to unprincipled behavior, which he then calls "inexcusable."

If you're interested in Professor Kmiec's views on torture, go read this. Then, if you're interested in my response, come back here and read on.

Let's begin with the trial of Specialist Charles Graner, about which I've written several times recently (here, here, and here). Professor Kmiec writes that the court martial "established gross and indecent abuse for sport, unrelated to the acquisition of intelligence." True, but it also established–even through the testimony of prosecution witnesses–that there was abuse of detainees that was most definitely related to the acquisition of intelligence (or at least to attempts to acquire intelligence from detainees who likely had no useful information to offer). Guards were encouraged to "soften up" detainees for interrogators. They were also complimented by their superiors for some, if not all, of the abuse they perpetrated. Not surprisingly, we learned shortly after the Graner court martial that some of the officers involved in the Abu Ghraib scandal may also face charges.

Was Graner a bad apple? Most definitely. Published accounts of the court martial suggest that the jury at Fort Hood rightfully convicted him on charges stemming from the abuse of prisoners. Soldiers have a right–-an obligation, in fact–-to disobey unlawful orders and so his defense (that he was merely following orders) could not have been entirely exculpatory. But, sadly, the story doesn’t stop with Specialist Graner. Nor does it stop at Abu Ghraib. Or even at Guantanamo. This is where Professor Kmiec misses the point. Or rather it is one of the places where he misses the point. What numerous investigations, one of which Professor Kmiec refers to in his article, have made absolutely clear is that there has been a consistent pattern of abuse in the way the United States has treated detainees in Abu Ghraib, Guantanamo, and Afghanistan. It seems rather unlawyerly to be aware of a pattern and not to ask questions about the design that produced the pattern.

After calling what happened at Abu Ghraib "inexcusable, counterproductive, and well below the American character"--What, incidentally, is wrong with saying "well below the standards of international law" or even "well below the standards of human decency"? Is Professor Kmiec unable to concede even that much to the notion of international human rights?–-he suggests that we face a dilemma and that "necessity" may compel us to do some things that we might not ordinarily do. Here are his words: "And yet we have to come to grips with the necessity of subduing fanatical outlaws who show little respect for human life and seem well inured to any interrogation method that lacks some element of anxiety or fear."

Beware whenever "necessity" makes an appearance in a moral argument. It is a trump card and what it trumps is precisely whatever morality dictates. As Milton put it in Paradise Lost (bk. IV, l. 393),

And with necessity,
The tyrant’s plea, excused his devilish deeds.

There are in fact situations in which necessity is a legitimate plea, a plea available to those who are not tyrants. It is, however, a special plea and one that makes consequentialists of us. Is Professor Kmiec correct in suggesting that we face a situation in which the ends justify the means? The necessity, he writes, is to "subdu[e] fanatical outlaws who show little respect for human life and seem well inured to any interrogation method that lacks some element of anxiety or fear." (Beware, too, whenever euphemisms show up in a moral argument. By "any interrogation method that lacks some element of anxiety or fear," Professor Kmiec means "any interrogation without torture.") The argument is this: On the one hand, the abuse at Abu Ghraib was "well below the American character," but on the other hand we’re dealing with terrorists–-terrorists whom we may have no choice but to torture if we hope to "subdue" them.

Think for a moment about the logic of Professor Kmiec’s position. If "fanatical outlaws" (let’s call them "terrorists") are more inured to interrogation without torture than innocent people mistakenly transported from Afghanistan (or elsewhere) to Guantanamo, then terrorists are going to respond to interrogation much like innocent people who have absolutely no information to divulge. One can imagine the conversation between interrogators bound to such a view: "We’ve kept the detainee bound naked in a stress position for fourteen hours and he still won’t tell us anything about Al Qaeda’s plans." "Yeah. He’s definitely a hardened terrorist." It’s the same logic used by our less enlightened forebears to determine whether or not a woman was a witch. As Matthew Hopkins put it in a seventeenth-century treatise on witchcraft, witches could be inured to normal interrogation techniques. "Loathe they are to confess without torture. This in itself, witnesseth their guilt."

The moral problem might be mitigated if we could be sure that all of those who have been subjected to "harsh interrogations" (another euphemism) were in fact terrorists. (At least then a coherent argument about the ends justifying the means could be produced.) President Bush and Secretary of Defense Rumsfeld have, at various times, assured us that all of those being held in Guantanamo are terrorists-–the worst of the worst, in fact. And yet, some of the Guantanamo detainees are being released in a tacit acknowledgment that not all of them belonged there in the first place.

Asif Iqbal and Shafiq Rasul are two of the Guantanamo detainees who have been released. Both are British citizens, born and raised in Tipton. They made the mistake of being away from home (for Iqbal’s wedding) when 9/11 occurred. They were taken by an Afghan warlord soon after the U.S. invasion of Afghanistan, transferred into U.S. custody (probably in exchange for money or weapons), and then transported (bound, hooded, and forced to urinate on themselves) to Guantanamo on January 14, 2002. After what they estimate were over 200 interrogation sessions and a great deal of anxiety and fear, the United States Government determined that Iqbal and Rasul were not terrorists. In March 2004, they were returned to their homes.

Iqbal and Rasul were repatriated after they had confessed to an association with Al Qaeda. Their "confessions" were proved by British intelligence--MI5--to have been false as, in fact, many coerced confessions are.) Other detainees have similar stories. Some will never be able to tell those stories. (At least six detainees in Afghanistan have died in American custody.) There are three other British citizens who were released and repatriated along with Iqbal and Rasul.

It is worth noting (as I did here several months ago) that Lt. Col. Anthony Christino, a twenty-year veteran of military intelligence, has insisted that claims of useful intelligence coming from Gitmo interrogations are grossly exaggerated.

But what of Professor Kmiec’s arguments concerning the Senate Judiciary Committee’s questioning of Judge Gonzales last week? He characterizes much of the questioning–-the critical part, that is-–as "posturing." Judge Gonzales’s Senate critics were off base, Professor Kmiec suggests, in questioning him about a Justice Department memorandum he "requested but didn’t write on torture." How Judge Gonzales views the opinions expressed in that memorandum (that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death") seems to me to be a very important question to ask of someone nominated to be not just the President’s chief legal adviser but the Attorney General of the United States.

Professor Kmiec defends Judge Gonzales’s reading of the Geneva Conventions and their applicability to Al Qaeda and the Taliban. I agree that Judge Gonzales was correct in suggesting that members of Al Qaeda did not qualify for protection under the Geneva Conventions. He was wrong, however, with respect to the Taliban. Professor Kmiec applauds Judge Gonzales’s reliance on the authority of the President to decide legal questions that the President asks his legal counsel to assist with. (Judge Gonzales practically said in his legal analysis, "Whatever you say, boss," and for this Professor Kmiec commends him.) What Professor Kmiec does not do is defend Judge Gonzales’s analysis of the applicability of the Geneva Conventions to the Taliban. Instead, he says that President Bush made it a moot point on February 7, 2002 by deciding to apply Geneva to the Taliban, even though he was not legally obliged to do so. (But, of course, what we know about conditions in Guantanamo since that time indicate that the President didn’t really mean it. If Common Article 3 of the Geneva Conventions applied to the Taliban as the President said it would, then Americans have been committing war crimes at Guantanamo.)

Toward the end of his essay, Professor Kmiec lauds Senator John Cornyn’s questioning. (Cornyn "turned to the substance of Gonzales’s legal thinking.") Cornyn’s brilliance was evident, Professor Kmiec seems to suggest, when he asked the witnesses critical of Judge Gonzales if "they agree[d] that all lawful means to gather intelligence likely to save American lives should be permitted." "They all answered affirmatively," Professor Kmiec notes. Gotcha! What Professor Kmiec fails to point out–-and this is the crux of the matter--is that "lawful" means something different to the Bush Administration than it did to witnesses who are experts in international law.

It matters a great deal who determines what is "lawful" in the United States. Judge Gonzales is on record having determined that, with respect to the "war on terror" at least, "lawful" is whatever the President wants it to be. And with respect to interrogations, Judge Gonzales permitted a very tortured definition of "torture" to stand as "lawful" for over two years. The confirmation of Judge Gonzales as Attorney General will send a very bad message to the world.