Defense of Judge Gonzales
Senator John Cornyn
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
Judge Gonzales's critics really believe that al Qaeda fighters deserve
to be treated better than an American citizen accused of a crime?
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."
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
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
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
January 6, 2005]