Against Gonzales

In an exclusive JURIST op-ed before his testimony today before the Senate Judiciary Committee, Admiral John Hutson (Ret. USN), former Navy Judge Advocate General and now President and Dean of Franklin Pierce Law Center, says that Judge Alberto Gonzales' reading of the Geneva Conventions on the protection of prisoners has been short-sighted and dangerous, has precipitated abuses in Iraq and Afghanistan, and renders him unsuitable for the position of US Attorney General, the country's chief law enforcement officer.



As Americans, we have been given many gifts by our creator and our forebears. We hold these gifts in trust for our progeny and mankind. Among these gifts is our legacy of strong advocacy for human rights for all human beings by virtue of their humanity alone. Another is an unwavering support and adherence to the rule of law.

These gifts come with a string attached. Like all gifts, there is also a responsibility to husband them. They may not be squandered. Rather we must nurture and refine them and pass them on in even better condition than we received them. Generations of Americans have understood this responsibility and accepted it.

In the wake of World War II, Truman, Eisenhower, Marshall, Vinson, and others fulfilled their part of this sacred trust. They had seen the horror of war, a horror the magnitude of which few of us have experienced, but have only read about. They responded with programs like the Marshall Plan and international commitments like the Geneva Conventions.

I believe the Geneva Conventions are part of our legacy, not unlike the Bill of Rights, the 14th Amendment, and Brown v. The Board of Education. The demonstrate the goodness of the United States. They also demonstrate our strength. Even in the midst of that most awful of human endeavors - war - we will treat our enemies humanely when we have captured them.

I have spoken out in opposition to the confirmation of Judge Gonzales because he appears not to understand that. He finds the Geneva Conventions to be an impediment, a hinderence to our present effort — quaint and obsolete.

His analysis and understanding of the Geneva Conventions is short-sighted and dangerous. It's wrong legally, morally, diplomatically, and practically. It endangers our troops in this war and in future wars. It makes our nation less safe.

His analysis of the Geneva Conventions and the applicability to the war in afghanistan and the war on terror is particularly disturbing because it indicates an utter disregard for the rule of law and human rights.

The Geneva Conventions have protected American troops from harm by the enemy for many years. US forces are more forward deployed than any other nation's in terms of numbers of deployments, locations, and numbers of troops thrust into harm's way. This has been the case at least since wwii and will continue to be true. Because of that there is no country for which adherence to the rule of law is more important than it is to the us. It's our troops that benefit. The US proponents of the conventions saw them as a way to protect US troops from the enemy, not the enemy from US troops.

We cannot now throw them over the side just because they are inconvenient to the present effort. This is only the present war, it's not the last war we'll fight, it's not even the next to last war.

An important aspect of the Geneva Conventions is to prepare us for the peace that will ensue. We can't so alienate our allies that they won't fight alongside us again. Nor should we so embitter our enemies that they fight on longer and harder than they otherwise would or are unwilling to relent even when their cause is hopeless.

I believe that the prisoner abuses we have seen in Iraq as well as Afghanistan and gitmo found their genesis in our decision to get cute with the Geneva Conventions. At that point, it became "no holds barred, total warfare."

Military doctrine has long been that "the United States abides by the laws of war…in spirit and letter…cruelty on enemy prisoners is (never) justified…."

Two indispensible aspects of military good order and discipline are the chain of command and the concept of accountability. Accountability means you can delegate the authority to act, but you may never delegate the responsibility for those actions. Government lawyers can't hide behind their advisor role to evade accountability for the actions they recommend.

The value of the chain of command is that what starts at the top drops like a rock down the chain of command. Subordinates execute the orders and adopt the attitude of their superiors.

I'm sure Judge Gonzales would disagree. He would discount the impact. He would argue that it was only a draft; that it wasn't intended to be made public. If he did that, it would indicate that he still doesn't understand why what he said was so wrong and so harmful.

Only recently, in the face of this confirmation process, has the adminstration attempted to undo the damage. I have three thoughts on that. One is that it is a step in the right direction. Two is that it is too little too late. And last is that it is an acknowledgement of error by an administration that is generally loath to admit error.

Damage has been done, but it is never too late to do the right thing. If Judge Gonzales goes on to be the chief law enforcement officer of the United States after his involvment in this fiasco without hard questions and adequate answers, we will have failed to undo a wrong. We will have only exacerbated it. We will have failed to demonstrate that as Americans we do hold our international obligations dear, we are unwavering advocates for human rights, and we still support the rule of law.

We are at a fork in the road. This nomination has given the United States Senate an opportunity to tell the world what we think about those issues. What it does will send a message, good or bad, to the world and, importantly, to Americans.

Admiral John Hutson (Ret. USN), is President and Dean of Franklin Pierce Law Center in Concord, New Hampshire. He is a former Judge Advocate General of the Navy. Read Admiral Hutson's full written testimony to the Senate Judiciary Committee on the Gonzales nomination here.
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