Strata Lucida

Careful Chris. Your implication is that Gonzalez objects to humane treatment for prisoners of war. Not so. He only said that the nature of the war has changed in a manner that was unforseeable when GPW was drafted. Thus the limitations imposed by GPW are unworkable if the greater consideration is to "avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians." I agree with him.

To your other point, Clinton's parsing was treated unfairly by the conservative media.

VARepublicMan--

My first argument against what you say is a constitutional one: the executive branch does not have the right to set aside laws it considers inconvenient. The GPW, as a ratified international treaty, is the "supreme law of the Land" (by Article VI of the Constitution).

My second argument is that while Gonzalez may personally disapprove of torture per se, his argument that the president is authorized to set aside the law directly enables the culture of inhumane treatment. Perhaps the president did not directly and personally order those interrogators to do what they did, but his policy creates the conditions for it. The similarity of abuses across different detainment camps, moreover, suggests high-level coordination and orders were involved.

The best argument against using torture against an enemy who does not respect the Geneva Conventions is that it, by compromising our commitment to the rule of law, reduces us to their level. The way to respond to violent fundamentalism is not with more violent fundamentalism. The Bush administration, I fear, feels the opposite.

On your first point, the Gonzalez memo of Jan 25, 2002 directly contradicts your argument by stating that the Attorney Generals Office determined that the Executive Branch does have the authority to exclude conflicts with Al Queda and the Taliban from coverage by the GPW. It also acknowledges that counsel for the Secretary of State differs. I would suggest that, because of this disagreement, neither you nor I should stand on this as a point of proof.

On your second point, using aggressive means to gather information from captured terrorists is only justified by the environment they (the terrorists) themselves have set up, namely that we are not protecting just armed combatants. We are also protecting innocent civilians (both American and foreign) because the terrorists have chosen to make civilians a target. This is not just our "violent fundamentalism." It is using force to protect those whom you are required to protect.

Gonzales and the DOJ were arguing that GPW does not apply to the Taliban/Al Qaeda; I am arguing the opposite. So yes, you are right to say I can't lean on that as a point of proof, because it's the point of argument. Using force to protect the innocent is all well and good -- although I quibble over whether our actions in Iraq fall under the category of "protecting the innocent" -- but that force must be lawful to be morally justifiable.

Gonzales, Yoo, and others essentially argued that GPW doesn't apply to Taliban/Al Qaeda/etc because the latter are not signatories to the treaty. That, plus the Bybee memo's (ahem) tortured redefinitions of torture, suggest a pattern of lawlessness that is highly disturbing, and undermines our claim to legitimate violence.

Chris

tortured redefinitions of torture ouch!

We are quickly heading to areas where you and I will obviously disagree.

The law is all about crafting words that define human actions so those actions can be regulated. As background, Gonzalez started by saying that GPW does not apply. Because of the question before him, he elaborated on a potential argument that GPW should not apply due to the unforeseen nature of the new conflict. Your comment (supported by the line of reasoning given in the cited article) about the “irritating requirement of humane treatment for prisoners of war” in the GPW was off point because the Gonzalez comment is about the nature of the new conflict and not about GPW or prisoners of war.

I often disagree with you but value your viewpoint. All in all, you have a presentation style that I enjoy. I think that is why I enjoy reading, and will continue to read, your blog.

The above quote "tortured redefinitions of torture" were intended to be italicized. Next time I'll use quotes.

VARepublicMan--

Thanks for reading my blog even though you often disagree. I find reading blogs with different viewpoints very helpful too -- as long as there's some shared sensibility there. That's why I can tolerate Andrew Sullivan and D-N-I.net, but not (say) Kim du Toit or Little Green Footballs.

And yes, my blog strips out html, in an attempt to foil spammers.

Actually, I don't even need a shared sensibility because I have a fairly thick skin. ;^)

You have your viewpoint. If I am not interested in it, even if it is completely opposite from my own, then I won't read it. Bt I don't need to agree with it to find it interesting.