Fatuous: The Witnesses Against Judge Gonzales Torture Logic

For hours, the confirmation hearing for the Attorney General designate, Alberto Gonzales, was grueling — for his detractors. The White House Counsel handled often strident questioning with aplomb. But, as strongly as Judge Gonzales held his ground on such matters as the non-applicability of the Geneva Conventions to alien enemy combatants, his critics provided just as strong a justification for his inevitable confirmation. In a word, they were fatuous.

I speak in particular of the three witnesses trotted out by the opposition at the conclusion of the very long day: Douglas A. Johnson, the executive director of the Center for Victims of Torture; retired Rear Admiral John Hutson, the former Clinton-administration Judge Advocate General who is now president and dean of the Franklin Pierce Law Center in New Hampshire; and Harold Koh, another former Clinton-administration official who is now dean of Yale Law School.

The trio lodged a few basic objections to Gonzales: (a) They insisted that he had retreated from what Koh insisted had been “zero-tolerance” policy regarding torture in the 1990s; (b) extrapolating from the (now retracted) August 2002 memo issued by the Justice Department's Office of Legal Counsel, they claimed that policies he advocated, or at least tolerated, would enable the United States to engage in precisely the same type of savagery as was once practiced by Saddam Hussein's sadistic regime; and (c) they contended, again drawing on the OLC memo, that Gonzales advocated a constitutional “commander-in-chief power” to override statutes and treaty obligations that would place the president “above the law.”

New Senate Judiciary Committee Chairman Arlen Specter performed his most valuable service of a very long day in about five minutes of questioning — during which he exposed the emptiness of the high dudgeon by confronting these experts with the so-called “ticking bomb” hypothetical: A bomb is about to be detonated in a major metropolitan area, likely to kill perhaps hundreds of thousands of people, and the military has as a captive a known terrorist who, we have reason to believe, has knowledge which would allow us to save those lives if we could get him to provide it. Are you saying, the senator asked, that torture — even in a non-lethal method, requested by a responsible high official, and perhaps even supervised by a federal court — would be absolutely impermissible? That we must stand down while those thousands are massacred?

The answers were fascinating. Cutting through the dizzying circumlocution, each witness either stubbornly declined to answer the question or grudgingly acknowledged that the situation made torture (of the non-lethal type described above) at least acceptable if not permissible.

Hutson imagined that, in such dire circumstances, the authorities might resort to torture “because you have to” coerce the information. He maintained, however, that he would prefer not to be drawn into so hypothetical and academic a subject so late in the day. So much for zero tolerance.

Johnson, who had earlier fretted that coercive interrogation might cause the terrorists “psychological numbing” and perhaps even “major depression,” similarly declined to answer because the scenario was too improbable — an “overblown” product of “fantasy” and “mythology.” So, if you're following this: According to Gonzales's detractors, the American people should worry profoundly that some sensible permissiveness in interrogation practices might conceivably turn the U.S. military into the Fedayeen — even though there isn't anything, even in the roundly condemned Abu Ghraib scandal, that remotely approaches the depravity of Saddam. Yet these witnesses don't feel the need to trouble themselves even a little over the ticking-bomb scenario because, as they see it, it is unlikely that will ever occur. Very consistent.

Finally, there was Dean Koh. He had intoned at length about the noxiousness of the suggestion that the president is above the law, attributing it to Gonzales (who, by the way, has not made the claim) because of language in the OLC memo that Gonzales didn't write and that the Justice Department no longer stands behind. So how would Dean Koh resolve the ticking-bomb problem? He acknowledges that it might be necessary to get rough with the detainee. But he sees no need to legalize something that might be necessary for national security. Why? Because, as the chief executive responsible for the enforcement of the criminal laws, the president also maintains the discretion to decline to prosecute. Koh opined that the president can approve the torture by simply orchestrating it and then refusing to arrest or indict the torturer.

Got it? The president is not above the law, he is simply beyond the reach of the law. You don't see the distinction? That's because there isn't one — with the possible exception that Koh's vision is more alarming than the OLC memorandum. The latter at least limited the theory of a presidential override of binding law to dire situations involving a national security threat and the president's power to wage war. As a practical matter, Koh's approach would leave the president above the law in all situations.

By the end of the session, under questioning by Republican Senator John Cornyn of Texas, the two law-school deans had even back-peddled on the Geneva Conventions, conceding that stateless al Qaeda terrorists did not qualify for honorable prisoner-of-war status — just as Gonzales had maintained, under no small amount of hectoring.

A number of us have tried to grapple with the hard stuff about the war against terrorists — the intersection between abiding respect for human dignity and the imperative of pressing for intelligence that might save human life. We don't pretend that this is easy, that it's black-and-white, or that expressly licensing coercive interrogation — even a minimal form of torture — in the most dire situations would not potentially open the door to human-rights abuses that should be universally condemned. It would. That's why it needs to be thought through with sensitivity.

But the critics should do us all a favor: If you're going to talk the talk of righteous indignation, be ready to walk the walk. Be ready to tell Americans exactly what protections you want to give to the terrorists. Be ready to tell Americans that you would prohibit coercive interrogation even if it were the only way of saving a hundred thousand of them.

If you're not ready to do that — because you full well understand that your position is not one even you can defend when the questions get hard — then don't waste our time. Get out of the way of serious people like Judge Gonzales. People who don't pretend to be perfect, who don't claim to have all the answers, and who are not so smug that they think they can afford to take life-and-death options off the table — even as they pray they will never have to use them.

— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.