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Time and time again, Judge Gonzales has dutifully advised Mr. Bush of his legal duties and responsibilities in the war on terrorism.

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In Defense of Judge Gonzales

By Senator John Cornyn

The nomination of Judge Alberto Gonzales to serve as our nation's 80th Attorney General — and our first of Hispanic descent — is the American dream come true. Yet his nomination faces noisy, if ultimately futile and unjustified, opposition.

The son of migrant workers, Mr. Gonzales grew up in Humble, Texas. His childhood home, where his mother still lives today, was built by his father and uncle. As a child, he sold soft drinks at Rice University football games and dreamed about someday enrolling there as a student.

Mr. Gonzales is the first person in his family to go to college. After graduating from Rice and Harvard Law School, he joined a prestigious international law firm headquartered in Texas and became one of its first minority partners. He eventually caught the eye of a Texas governor who saw a uniquely talented yet modest man and appointed him general counsel, secretary of state, Texas supreme court justice, and eventually, counsel to the president.

Thus, the nomination of Judge Gonzales combines stellar legal credentials with an inspiring American success story. Despite this, some liberal legal elites and special interest groups in Washington have already sharply attacked his nomination, citing his legal work in support of the war against terrorism.

These attacks against the nomination of Judge Gonzales are the flimsiest I've seen yet. Take, for example, the criticism that Judge Gonzales advised the president to deny prisoner of war status to al Qaeda and Taliban fighters, even while insisting that their treatment be humane in all instances.

According to Article 4 of the 1949 Geneva Convention, though, only lawful combatants are eligible for POW protections. The Red Cross's own guidelines state that to earn POW status, combatants must satisfy all four conditions of lawful combat: being commanded by a person responsible for his subordinates, having a fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting their operations in accordance with the laws and customs of war.

Accordingly, Mr. Bush determined that the United States shall treat all detainees humanely, but that as a legal matter, neither al Qaeda nor the Taliban militia are legally entitled to the convention's protections. The former is not even a state, let alone a party to the Geneva Convention, while the latter does not comply with all four required conditions of lawful combat.

The president's determination was clearly correct. His interpretation of the convention is not only well-grounded in the text, structure and history of the convention, as documented in authoritative international law treatises, it has also been affirmed by three federal courts across the country.

In addition, the administration's position has been endorsed by numerous legal scholars and international legal experts across the political spectrum, as well as the September 11 commission.

Professor Kenneth Anderson, a former general counsel of numerous liberal organizations, including the Soros Foundations and the Open Society Institute, agreed in an amicus brief to the U.S. Supreme Court that "[t]he President's conclusion that the members of al Qaeda, and the Taliban, are unlawful combatants is clearly correct." That brief was also signed by numerous former Carter administration officials, former State Department legal advisers, retired judge advocates general and military commanders and other international law specialists. Even the Washington advocacy director for Human Rights Watch, Tom Malinowski, a vocal Bush administration critic, has grudgingly conceded that the administration interpretation was "probably correct."

The administration's Geneva position is not only legally correct, but also essential as a matter of national security. After all, al Qaeda fighters are not professional soldiers — they are war criminals.

Extending POW protection to al Qaeda would be dangerous to our soldiers. For example, the Geneva Convention guarantees POWs access to a variety of devices that could easily be turned into weapons against their captors. POWs are even entitled to a monetary allowance to purchase goods and preferential customs treatment for shipments they receive from the outside world.

Moreover, recognition of POW status would dramatically disable us from obtaining the intelligence needed to prevent further attacks on U.S. civilians and soldiers. For example, questioners could not entice detainees to respond by offering creature comforts or other preferential treatment — even though that is standard operating procedure in police stations across our country. And because the convention prohibits the holding of detainees in isolation, al Qaeda fighters would be able to coordinate with each other to thwart effective questioning. POW status even confers broad combat immunity against criminal prosecution before civilian and military tribunals alike.

Do Judge Gonzales's critics really believe that al Qaeda fighters deserve to be treated better than an American citizen accused of a crime?

Finally, giving POW status to unlawful combatants would actually badly undermine international law itself. The laws of war are specifically designed to encourage combatants to comply with international law by offering better treatment in the event of capture. After all, as a renowned treatise on the law governing prisoners of war explains, "the only effective sanction against perfidious attacks in civilian dress is deprivation of prisoner-of-war status."

This is not the first time there has been an effort to extend the Geneva Convention to cover terrorists. Nearly two decades ago, President Reagan rejected a proposed amendment to the Geneva Convention — known as Protocol I of 1977 — to extend POW status to unlawful combatants, and every subsequent president has taken the same view. As Mr. Reagan rightly argued, "we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law."

Time and time again, Judge Gonzales has dutifully advised Mr. Bush of his legal duties and responsibilities in the war on terrorism. Now opponents of his nomination want to punish him for it. Two years ago, I joined nine fellow freshmen — Republicans and Democrats alike — to declare that the Senate's confirmation process is badly broken and that we need a fresh start. Confirming Judge Gonzales by repudiating baseless criticisms of his nomination would be an excellent start.

U.S. Senator John Cornyn (R-TX) is the chairman of the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights. He served previously as Texas Attorney General and a Texas Supreme Court Justice. This commentary originally appeared in the Washington Times.

[Posted January 6, 2005]