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January 7, 2005



PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT. The new Congress got to work this week, and the highlight was the Senate confirmation hearing on the president's choice for Attorney General, Alberto Gonzales. There's no doubt he had a great success story to tell: one of eight children of poor Mexican immigrants, graduate of Harvard Law School, and currently White House counsel and likely to become the first Hispanic Attorney General of the United States. But the questioning focused on whether Gonzales, in coordinating the White House legal strategy for dealing with terrorism, helped to justify the mistreatment or even the torture of prisoners.

ALBERTO GONZALES: Contrary to reports, I consider the Geneva Convention neither obsolete nor quaint. After the attacks of 9/11, our government had fundamental decisions to make concerning how to apply treaties and U.S. law to an enemy that does not wear a uniform, owes no allegiance to any country, is not a party to any treaties, and most importantly does not fight according to the laws of war.

Like all of you, I have been deeply troubled and offended by reports of abuse. Torture and abuse will not be tolerated by this administration.

PAUL GIGOT: With me to discuss all this are Dan Henninger, Deputy Editor of the Editorial Page, Rob Pollock, senior Editorial Page writer, and Ken Anderson, professor of law at the Washington College of Law at American University in Washington. Ken, welcome to the program. Nice to have you with us.

KEN ANDERSON: Thank you very much.

PAUL GIGOT: The issue that -- leave aside the politics and the partisan bickering for a second -- the key issue here seems to be whether or not, or what limits we should set as a country, a free society, on interrogating prisoners, detainees, terrorist detainees who really would threaten our way of life. You feel we need a debate on that, a big national debate. Did we get one this week?

KEN ANDERSON: I'm afraid we did not. I'm afraid that this was far from a debate. I think that what went on in the hearings was, I think, appropriate to the task of confirming an Attorney General. But I don't think that it actually was what we need in the way of a debate over what the standards should be for interrogation for obtaining information for these kinds of questions about the treatment of detainees and the war on terror.

That debate, I think, has to be held openly and in the public. I think that one of the things that has emerged out of the scandal so far is the very justified feeling that bureaucratic agencies and military and intelligence personnel have been operating without clear standards to guide them. And, that to the extent that they have attempted to create standards, those standards have been created far too much out of the public eye. And that we, collectively, have to step up to the plate and take responsibility for what we think those standards should be -- broad or narrow, whatever they come out to be.

PAUL GIGOT: Interesting. One of the questions that emerged from this, one of the lines of questioning, was based on what the writer Heather McDonald has called "the torture narrative," that is, that the torture memos, these legal arguments that were made inside the Administration and later leaked, somehow produced what happened at Abu Ghraib. Is that at all an accurate rendition of what really happened?

KEN ANDERSON: Well I don't think that that's -- in my view that's certainly not an accurate rendition. I think that the memos simply causally were not related, that the discussions that took place within the White House, within the Justice Department, were not in fact related to what was going on in Abu Ghraib at all. But the question of what those standards should be still then remains on the table. So the question of having abuses -- well, what constitutes an abuse? What constitutes an acceptable method of asking questions? How does one balance off the need for information in ways that are about protecting lives, about protecting people from being kidnapped and shot and beheaded and so forth, whether in Iraq or whether in terrorist attacks in the United States, I think has clearly got to be on the table.

The memos, I think, took on the task of attempting to address those questions, including saying what are the outer limits of what is okay and not okay, what constitutes torture. You go to the torture convention, and the torture convention nowhere sort of lists a set of things and says this is okay, this is torture, this is not torture.

PAUL GIGOT: The torture convention of the Geneva Convention, right? Or --

KEN ANDERSON: They're separate. It's a separate document. So there's a separate convention which is called the torture convention, of which the United States is proudly, and should be proudly a party. And there is U.S. legislation which takes those standards and enacts them into U.S. law. But nowhere in there is there sort of a list of operationalizing that and saying this is what you can do and this is what you can't do. So those questions have to be on the table.

PAUL GIGOT: Let's get into the specifics of that, Rob. How did these torture memos develop? Weren't they used specifically, and developed at a request of the CIA in order to interrogate certain Al Qaeda operatives?

ROB POLLOCK: That's right. The bottom line here, the basic fact, is these developed because very soon after 9/11 we ended up having some very bad people in our possession from whom we badly needed information but who had been trained not to give it up to us. That was one of the big things that Al Qaeda training was about, was resisting interrogation.

PAUL GIGOT: Okay. Dan?

DAN HENNINGER: To a certain extent we've gotten beyond the point -- I'd love to have the kind of open, public discussion of this that Ken is suggesting. But I think that the effect of Abu Ghraib and this conversation and what happened at this hearing is going to impact the security forces who are tasked with getting this sort of information, and they're going to pull back. Because they don't know what the standard is. And I saw a story out of Afghanistan just last week in which an American commander said we are actually holding fewer prisoners specifically because of fears of abuse.

PAUL GIGOT: I want to show the viewers a quote on that. It was again used by Heather Mac Donald about an Afghanistan interragator that said "The Americans will give us our holy book. They'll draw lines on the floor showing us where we pray. We'll get three meals a day with fresh fruit... We can wait them out." Isn't that suggesting that there are some dangers that maybe these techniques aren't going to yield the information we really need to protect ourselves?

KEN ANDERSON: I think that's an issue, sure. I think that it's been a history in the course of our intelligence community going back to the Church hearings in the seventies where we systematically said we're going to operate on a purely clean hands environment in such a way that left us without a sort of institutional history of what our moral judgments, our political judgments, legal judgments were about these things. And that in fact created the kind of situation which Alberto Gonzales and various lawyers and the Justice Department and different places in the Administration had to sort of face those questions from scratch. Which is one of the reasons why I don't think that one can use the occasion of the hearings to have this kind of public discussion, because there is a certain sense that one has got to take the situation that they faced in the months following 9/11 as it stood, with the prisoners that they are in fact dealing with.

That said, however, I think that one of the things that also has to be confronted is that, although the torture narrative that Heather McDonald refers to, this saying well, they're coming up with justifications for torture and therefore they're involved in all the stuff that went on in Abu Ghraib is clearly false, clearly inaccurate, and clearly sort of a sliding together. At the same time, I don't think that one can simply say that there is this gulf between certain very isolated discussions going on within the White House Council's office and within the Justice Department, and then there were those terrible abuses that went on in Abu Ghraib, either. It doesn't take into account the sort of material that is emerging from the FOIAs, from the Freedom of Information Act requests that have emerged with the ACLU. And that I think we have to recognize that this is in fact much more widespread than had been acknowledged, and for reasons that, Rob, you raise, of the need to gather information.

I certainly do not dispute that need to gather information. And I also think that Dan, you're right in suggesting that unless one has got clear standards about that people will pull back out of fear of prosecution. There has to be something that's on the table saying this is okay, and this is not okay. And that has to be public knowledge.

PAUL GIGOT: But if Al Qaeda detainees realize that we're not going to do certain things, that we're only going to give them three meals a day and do name, rank and serial number, what incentive do they have to cooperate? Is it not uncertainty about their condition and predicament a large part of what can get them to cooperate?

ROB POLLOCK: Well, I think that's absolutely right. Uncertainty is a strong weapon. And while I would agree with the professor that certainly these abuses were more widespread than Abu Ghraib, it's important to keep in perspective what the Schlesinger Report found, which is that we're talking about over 50,000 detainees in the war on terror, and less than 300 alleged cases of abuse. And as Schlesinger puts it, this is better than the behavior of our troops in World War II.

PAUL GIGOT: We had a prisoner this week at Guantanamo, sue in federal district court so as not to be returned to Egypt from Guantanamo, which suggests that he knows which is the worst interrogator and they don't abide by the Geneva Conventions in some other countries. Isn't this fear of being turned over to the other countries critical, in your view, to getting information?

KEN ANDERSON: Well, I think that it probably has played that role. Now I think there's a serious moral question about whether one can exploit that fear, if it in fact means that one is going to turn over somebody to the Egyptians knowing that it's not going to be a question of three meals a day and a place to pray and fresh fruit, but instead they're going to tear your fingernails out and maybe feed you to a meat grinder. I think that when those are the fears that are being played upon, they can only be played upon so long as somebody reasonably believes there's a chance you might do it. It's like issuing threats of any kind. If the threat is not ultimately backed by your willingness to do it then it no longer becomes a threat. And again, the question we have to ask ourselves is, are we relying on threats which we're not willing to back up because they would be completely immoral and completely illegal and completely beyond the pale of what we're prepared to do? Or are we relying on threats that we actually do mean because we're willing to hand them over to the Saudis or over to the Yemenis or to the Egyptians. And if it's the latter, I think we've got a big problem.

PAUL GIGOT: All right, Ken. It sounds as if while Alberto Gonzales is going to be confirmed, we're not very much further along in deciding what the limits of interrogation are. Thank you. Next Subject.