Former Legal Adviser Taft Goes Off the Reservation

The WSJ reports today (reg. req’d) on a speech from last month by former State Department Legal Adviser William H. Taft IV criticizing the U.S. government’s policy on detentions in Guantanamo Bay. Here are the highlights:

There is no basis in the law of war, criminal law or human-rights law for such practices [in Guantanamo]. Nor is it tenable after the Supreme Court’s rulings last summer to assert that detainees have no legal rights of any kind, that they may not contest with the assistance of competent counsel of their own choosing the legal basis of their detention, that the government has complete discretion to determine the conditions of their detention, or that whether they are treated humanely or not is a question only of policy….How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law.

The article further quotes Taft as saying “senior military officials agreed that the treaty should be followed ‘without qualification,’ but Justice Department lawyers insisted on ruling that the Geneva Conventions “did not apply to al Qaeda as a matter of law and to qualify the commitment to apply them as a matter of policy to situations where this was ‘appropriate’ and ‘consistent with military necessity.’ “

I don’t know exactly what to make of this airing of the administration’s internal deliberations, which is always somewhat suspect because Taft obviously has an interest in bolstering his reputation. But, if the reporting of Taft’s statements is accurate, and Taft himself is stating the truth, they lead me to a few comments:

(1) Given that the White House was getting all this contrary advice from Taft, it actually takes some of the sting out of the critics of the Justice Department’s Office of Legal Counsel’s work here on this question. The Justice Department prevailed, but it wasn’t because the Justice Department gave misleading or deceptive advice. Rather, it seems to me they gave their considered views, and the State Department gave their considered views, and Gonzales made his choice between them.

(2) I am a bit surprised to hear Taft claim that unspecified “senior military officials” supported applying the Geneva Convention without qualification, even to Al Qaeda. Why such a Defense Department legal memo has never surfaced makes this claim rather suspect to me, since DOD lawyers have every incentive to leak such a memo. Rather, I bet the military was divided on this question, and didn’t have a uniform view on this question.

(3) I think Taft is way overstating his case when he declares that “How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law.” Actually, I think the reverse is just as often the case, that is to say, that how our government treats people should often be a matter of policy, and not a matter of “law” precisely because law is often inflexible and ill-adapted to changing situations. In many, many instances, policy makers are given lots of room for discretion by the law, and I would want our policy makers to act humanely and decently even if the law does not require them to do so. That is, officially at least, the current administration’s policy even though there is some evidence that it is not really living up to its own policies.