Congress Should Fight Torture, not Gonzales

bAlberto Gonzales has been taking a beating in his confirmation hearing for two main reasons.  First, he is under fire for writing this memo for the President.  In the memo, Mr. Gonzales took the position that the Geneva Convention's prohibition of torture did not cover members of al Qaeda.  Thus, it did not violate the laws of war to torture them.  Second, it's alleged that Mr. Gonzales (in his capacity as White House Counsel) influenced the Office of Legal Counsel to narrowly construe the Geneva Convention's anti-torture provisions, in OLC's now infamous torture memo.  And so the good Senators are outraged that Gonzales may have asked the Office of Legal Counsel to creatively define "torture" to prevent anyone from being covered under it.

Orin Kerr quotes Senator Lindsey Graham's opening statement, where the Senator states:

So if we're going to win this war, Judge Gonzales, we need friends and we need to recapture the moral high ground. And my questions are long that line.   To those who think that you can't win a war without — with the Geneva Convention applying — I have another role in life, I'm a judge advocate, I'm a reserve judge in the Air Force. . . . Part of my job for the last 20 years, along with other judge advocates, is to advise commanders about the law of armed conflict.

In the comments to Professor Kerr's post, Noah Peters makes a very powerful point, writing:

What no one talks about is Congress's role in ensuring that torture does not take place. The entire process of determining the conduct of wars, including the extent to which the US will abide by int'l law, has become entirely dependent on the will (caprice?) of the executive, and the President usually feels little responsibility to be transparent about matters of public interest.

I think Mr. Peters is right.  If the good Senators - and, we presume, the Representatives - were so appalled with the conclusion of torture memos, why didn't they draw up a bill properly defining torture?   After all, the memos merely interpreted the Geneva Convention, the federal anti-torture statute, and a federal law that uses the violation of the Geneva Convention as a predicate basis for a criminal offense.  In other words, the torture memo was dealing with federal law.

There's nothing that says the Geneva Convention is the sole law of war.  Indeed, the Uniform Code of Military Justice already governs the conduct of all soldiers, sailors, and airmen and many other federal criminal laws apply overseas.  Why doesn't (didn't) Congress enact an OLC-proof federal law against torture?  Since the President and other executive officials (supposedly) want torture, but Congress is serious about fighting the issue, then Congress won't have any difficulty overriding his veto.

Of course, Congress has not redrafted the anti-torture statute, has it? It kinda makes you wonder if anyone in Congress has the moral standing to attack Mr. Gonzales.