The Supreme Court of Texas Blog points out a little news item that likely won't get much notice but really ought to: the hiring of a new Solicitor General, a man named James Ho. Why should anyone care about this? Because of this tidbit of biographical information that SCOTX mentions in a footnote:
In addition to the many details in the press release, Ho has the distinction of having co-written a paper in 2003 with John Yoo about "unlawful combatants" and the Geneva Convention. Harvey Kronberg at Quorum Report seems concerned today, but I think that's premature. It's only if Texas secedes and begins to wage its own foreign policy that we should start to worry about how Texas would treat "unlawful combatants." [Update: Harvey made a new post today (Thursday) moderating his earlier criticism after more carefully reading the linked article. Along the way he notes that Ho has gone out of his way to distance himself from some of Yoo's more controversial statements on the subject.]
[T]here is no indication in this article that Texas' next Solicitor General, James Ho agrees with Yoo's perspective. The State of Terrorists simply argues that unlawful combatants are owed neither the rights of a criminal defendant nor the rights of a Prisoner of War. His supporters correctly argue that this view is mainstream and agreed with by sources as diverse as the New York Times editorial page and Democratic Senate Judiciary Chair Patrick Leahey. To agree with the Yoo and Ho in their jointly authored piece does not inherently lead to the condoning of torture or false imprisonment without remedy.
In fact, Ho told a University of Houston audience, "...The Senate came to an explicit consensus on the Geneva Convention issue when Senators on both sides of the aisle agreed that al Qaeda fighters are not legally entitled to all POW privileges. The Senate also came to an implicit consensus on the Torture Convention, when no Senator bothered to defend the Justice Department's earlier memo. Perhaps that is unsurprising, given that the Department withdrew its earlier memo before the confirmation proceedings took place.
Ho continued, "As a former career staff attorney at the Justice Department's Office of Legal Counsel - one who served at the Department at the time the memo was written, but who did not work on it and did not even read it until after leaving the Department - I must say that the earlier memo was a tragic episode for the Department. It's not every day that the Office of Legal Counsel reverses itself. It's rarer still for the Office to reverse a position it took earlier, under precisely the same Administration, and under precisely the same Attorney General. But as a matter of respecting international law, it is good that it did so."
The legal arguments in The State of Terrorists simply open a door. They advocate no behavior or attitude toward "illegal combatants". What lay on the other side of that door could be either measured or malignant depending on the policy-makers in charge.