Donald J. Devine

January 12, 2005

An Important Retrenchment

Attorney General nominee Alberto Gonzales' pledge at his confirmation hearing that torture and abuse will not be tolerated by this administration" is of critical importance not only in winning hearts in the war on terror but in setting American policy straight. Since its adoption, the Geneva Conventions have been a hallmark of U.S. human-rights policy and military doctrine, and it was vital the Bush administration make the U.S. position clear to the nation and the world.

His assurance was by no means a foregone conclusion. On the very morning of Mr. Gonzales' hearing, the editors of the Wall Street Journal urged him to turn away from the "awful job" the administration had been doing to "appease" its critics. He was urged to go on the offensive to defend the Justice Department's August 2002 memo on acceptable torture techniques that he had participated in preparing. They even suggested he defend the extreme technique of "water-boarding" that simulates drowning so effectively victims normally break down immediately thereafter, as a technique merely "pushing the boundary of tolerable behavior" rather than being immoral or unjustified.

Mr. Gonzales would have none of this. While properly refusing to define the outer limits of presidential power in an extreme emergency as "hypothetical," the nominee said he believed the president did and should follow the U.S. 1995 anti-torture law, that torture was always wrong, and that the Geneva Conventions were American policy and could be amended only by a formal change in law. He was clear the 2002 Assistant Attorney General Jay Bybee memo was misguided and was superceded by the recent formal interpretation of Mr. Bybee's successor Daniel Levin, who was even blunter in saying, "Torture is abhorrent both to American law and values and international norms." As the official position of the U.S. government, this is the law.

As Air Force Reserve judge advocate and Republican Sen. Lindsey Graham stated at the hearing, "when you look at ways around the spirit of the law," as did the August 2002 interpretation, "it is very hard to come back."

The strength of the U.S. system and the Bush administration in particular is that they did come back.

There were several heroes in this drama. Some not-yet-known military officer and others courageously complained up the chain of command that the August memo had been interpreted in a Defense Department instruction regarding the treatment of detainees in a manner threatening the security of present and future U.S. military prisoners. When Defense Secretary Donald Rumsfeld learned his department's memo was being questioned, he ordered a review that led to a formal change in policy, which Mr. Levin extended to the whole government.

Mistakes are inevitable in government, especially under the stress of a catastrophe such as September 11, 2001. The mettle of a nation is how it reacts when faced with error. It is unrealistic to expect the commander in chief to spend his leadership capital constantly apologizing. It makes him look weak and leadership demands strength.

Yet, mistakes must be acknowledged and corrected. That was the invaluable mission performed by Mr. Gonzales the other day. We should all be thankful for his courage in helping to re-establish as fact, as Assistant Attorney General Levin said, "the centuries of Anglo-American law and the longstanding policy of the United States" on torture.