Posted by Orin Kerr:
Senator Graham on Torture and the Geneva Convention:
One of the interesting parts of today's hearing on the nomination of
Alberto Gonzales to be Attorney General was the [1]opening statement
of conservative Republican Senator Lindsey Graham. Graham has been
[2]sharply critical of the Administration on Abu Graib before, and his
opening statement ran the gamut from Abu Graib and Gitmo to torture
and the Geneva Conventions. Here is the bulk of it [it's rather long,
but I think worth reading]:
 I think we've dramatically undermined the war effort by
getting on a slippery slope in terms of playing cute with the law,
because it's come back to bite us.
Abu Ghraib has hurt us in many ways. I travel throughout the
world like the rest of the members of Senate, and I can tell you it
is a club that our enemies use, and we need to take that club out
of their hands.
Guantanamo Bay -- the way it's been run has hurt the war effort.
So if we're going to win this war, Judge Gonzales, we need
friends and we need to recapture the moral high ground. And my
questions are long that line.
To those who think that you can't win a war without -- with the
Geneva Convention applying -- I have another role in life, I'm a
judge advocate, I'm a reserve judge in the Air Force. . . . Part of
my job for the last 20 years, along with other judge advocates, is
to advise commanders about the law of armed conflict.
And I've never had a more willing group of people to listen to
the law. Because every Air Force wing commander lives in fear of an
air crew being shot down and falling into enemy hands. And we
instill in our people as much as possible that, "You're to follow
the law of armed conflict, because that's what your nation stands
for, that's what you're fighting for, and you're to follow it
because it's there to protect you."
Now, to Secretary Powell. He took a position that I disagree with
legally, but in hindsight might have been right.
I agree with you, Judge Gonzales, to give Geneva Convention
protection to Al Qaida and other people like Al Qaida would in the
long run undermine the purpose of the Geneva Convention. You would
be giving a status in the law to people who do not deserve it,
which would erode the convention.
But Secretary Powell had another role in life, too. He was a
four-star general, chairman of the Joint Chiefs. And to those who
think that the Geneva Convention is a nicety, or that taking
torture off the table is naive and a sign of weakness, my answer to
them is the following: that Secretary Powell has been in combat.
And I think you weaken yourself as a nation when you try to play
cute and become more like your enemy instead of like who you want
to be.
So I want to publicly say that the lawyers in the secretary of
state's office, while I may disagree with them, and while I may
disagree with Secretary Powell, was advocating the best sense of
who we are as people.
Now, having said that, the Department of Justice memo that we're
all talking about now was, in my opinion, Judge Gonzales, not a
little bit wrong, but entirely wrong in its focus, because it
excluded another body of law called the Uniform Code of Military
Justice.
And, Mr. Chairman, I have asked since October for memos from the
working group by judge advocate general representatives that
commented on this Department of Justice policy, and I have yet to
get those memos.
I have read those memos. They're classified for some bizarre
reason.
But generally speaking, those memos talk about that if you go the
road suggested, you're making a U-turn as a nation; that you're
going to lose the moral high ground, but more importantly, that
some of the techniques and legal reasoning being employed into what
torture is -- which is an honest thing to talk about, it's OK to
ask for legal advice. You should ask for legal advice.
But this legal memo, I think, put our troops at jeopardy because
the Uniform Code of Military Justice specifically makes it a crime
for a member of our uniform forces to abuse a detainee. It is a
specific article of the Uniform Code of Military Justice for a
purpose: Because we want to show our troops not just in words but
in deeds that you have an obligation to follow the law.
And I would like for you to comment if you could. And I would
like you to reject, if you would, the reasoning in that memo when
it came time to give a torturous view of torture.
Will you be willing to do that here today?
I have enabled comments -- as always, civil and respectful comments
only.
References
1. http://www.washingtonpost.com/wp-dyn/articles/A53883-2005Jan6_4.html
2.
http://www.baltimoresun.com/news/nationworld/bal-te.journal11may11,1,4936227.column
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