Welcome To “Genevaland”
It’s not such a wonderful place:
At a minimum, the Bush Administration should have thought carefully about Hamdan and interpreted it as narrowly as possible. Instead, Mr. England’s memo interprets the ruling in the broadest way possible, applying the standards of Common Article 3 to all “DoD orders, policies, directives, execute orders and doctrine.” As a matter of law, every other government agency, including the CIA, will now have to follow the Pentagon’s line.
In practice, this means that a captured terrorist such as September 11 mastermind Khalid Sheikh Mohammed is now protected by Common Article 3. People often associate the Geneva Conventions with guarantees against torture, protection for the wounded and the sick, and other “bare minimum” humanitarian standards. But Common Article 3 goes considerably further, forbidding, for example, “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
What exactly constitutes personal dignity and outrages upon it? Who knows, though we bet the ACLU will be more than happy to supply some answers. Our guess is that the concept can be read so expansively as to forbid the U.S. from so much as shouting at captured al Qaeda suspects, never mind “waterboarding” them, as was reportedly done to break KSM. In a war in which actionable intelligence acquired from captives is crucial to uncovering terrorist plots and preventing future attacks, it’s hard to imagine a greater self-inflicted setback to counterterror efforts.
The setback is also political, and by that we don’t mean partisan. We mean in the larger sense of the Bush Administration’s moral and legal authority for its anti-terror cause. By identifying terrorists as illegal combatants and treating them accordingly, the Administration was attempting to remedy the defects of the pre-September 11 legal architecture for handling terrorists. The pre-9/11 view divided the world between combatants and noncombatants, and viewed terrorism as just another crime to be dealt with through the existing criminal-justice system.
We have learned the hard way that that approach doesn’t work. The criminal-justice system takes too long and is complicated by the government’s need to keep military secrets. Moreover, according such rights to terrorists who murder women and children gives them moral legitimacy that will make winning this war that much harder. It elevates terrorists nearly to the level of GIs who obey formal rules of engagement and who can be, and as we’ve seen often are, punished severely for harming innocents.
What the world needs is a new legal framework for distinguishing between legal and illegal combatants, but instead we are now heading toward the European model where terrorism is seen as just another fact of life and not a unique evil or grave threat. In Germany, the High Court earlier this year released from custody Mounir El Motassedeq, an accomplice of 9/11 ringleader Mohamed Atta, on a technicality. Germany may be able to afford such legal exquisiteness; as the main terror target, the U.S. and its citizens cannot.
In this editorial, The Wall Street Journal is making an important distinction–one which I have raised before–between treating suspected terrorists humanely and actually extending to them the protections of Geneva to which they themselves do not abide. It’s a distinction that has been thrown under the bus of partisan rhetoric by some that are too busy being martyrs to actually think about the complexities of this issue. The only question now is how is America going to pay the price for this “moral victory.”
The only question now is how is America going to pay the price for this â??moral victory.â??
I do know this: we won’t sacrifice the principles that our forefathers swore thier “lives, fortunes, and sacred honor” to protect.
Jesus, Tinti, why don’t you sign up to torture the guys yourself?
There was no principled way whatsoever to read Hamdan as doing anything other than applying CA3 across the board. The Court didn’t say “this small portion of CA3 applies.” It’s all or nothing, and the Court correctly held that it’s “all.”
Correctly, because the entire point of CA3 was gap-filling: to ensure that no irregular combatant, civilian, etc., could be read out of Geneva entirely. Even an “illegal combatant” is entitled to what, in 1949, when the horrors of Nazism were fresh on the world’s mind, appeared to be bedrock principles that any civilized nation would be ashamed to deny: such as, no torture. No abuse. No humilation and degradation for their own sake.
I’m sorry that Mr. Tinti and the WSJ have no respect for “do unto others as you would have them do unto you,” and have replaced it with “do unto others as they do unto you.”
(Leaving aside the obvious point that torture doesn’t work–you get the answers you wanted in advance. Suskind’s new book documents how we only got actionable intel from our first Qaeda higher-up when we quit torturing and started using our brains.)
Alex,
With all due respect, you’re missing my point completely. Extending the Geneva Conventions to terrorists rather than creating a new category and rules to define treatment of terrorists in keeping with “the principles of our forefathers” is a fundamental mistake. Unlike Andrew Sullivan would have his readers believe, this isn’t solely about the treatment of suspected terrorists but also the extent to which they are given access to our criminal justice system. And that’s what Hamdan was about: military commissions. The argument that America can’t maintain its founding principles unless we give full Geneva protections to suspected terrorists is one that I have never seen argued persuasively.
I think you all missed the point. The memo said except for the military commissions, everything stays the same. We haven’t extended or withdrawn any privileges to the terrorists than what we had before. Status Quo Ante Hamadan except for the military commissions. Read the memo.
YAJ, I’ve read the memo and agree (sadly, in my case) that it means very little. Others disagree.
In any event, Marty Lederman’s latest post on the subject (Alex, you should be keeping up with him if you’re not already) makes it clear that the Bush administration is prepared to abandon even a minimal commitment to basic civilized conduct.
Read Lederman’s post, those who care about such things. I’ll just relay his quote from the Army Field Manual:
Humane treatment of insurgent captives should extend far beyond compliance with Article 3, if for no other reason than to render them more suceptible to interrogation. The insurgent is trained to expect brutal treatment upon capture. If, contrary to what he has been led to believe, this mistreatment is not forthcoming, he is apt to become psychologically softened for interrogation. Furthermore, brutality by either capturing troops or friendly interrogators will reduce defections and serve as grist for the insurgent’s propaganda mill.
As Lederman remarks: “Common Article 3 wasn’t too ‘vague’ for the 53 years that preceded February 2002. And it’s not now. The problem, from the Administration’s view, is not that its standards are too vague, but that they’re too restrictive.”
It’s a pity to see OTB’s commenters know so much more about this stuff than the U.S. Army. Maybe y’all should be sending in your resumes, with writing samples from the appropriate comment threads?
So, now, suddenly, Anderson finds military pronouncements credible?
So, now, suddenly, Anderson finds military pronouncements credible?
Pronouncements by professional military officers who aren’t generating “reports” obviously designed to CYA? Sure. My dad was an Army captain in Vietnam; he flew helicopters on ground-assault missions, which according to a TV factoid gave him a 1-of-8 chance of not coming home. I have great respect for the U.S. military at its non-politicized levels.
Anderson,
Don’t forget. Conforming to the Geneva convention would allow us to torture, shoot, hang or otherwise discomfort any terrorist we captured because they would not be lawful combatants.
The New Yorker has an article on Ali Soufan, an FBI agent whose pursuit of al-Qaeda pre-9/11 was frustrated by the CIA and “the Wall.” The author, Lawrence Wright, is interviewed:
Q. In your article, you describe Soufanâ??s interrogation techniques. He engaged the suspects; he won their respect; he debated them on theological issues. In interrogations he carried out just after 9/11, these techniques worked very well; he got crucial information about the hijackers and their connections. His methods were very different from the â??extreme measuresâ?? that weâ??ve been hearing aboutâ??waterboarding, sleep deprivation, humiliationâ??and that are being justified on the grounds that theyâ??re the only way to get this kind of information. Have we been given a false choice between abusing prisoners or letting something terrible happen?
A. Ali Soufan has shown that intelligent and careful interrogation can achieve real results. And it helps immensely, obviously, to have the language and cultural skills that he does. There are very few people in the American intelligence community that have his set of talents. The U.S. is known to have used these sorts of tactics you mention. The C.I.A.â??s impulse has been to deliver Al Qaeda suspects to foreign intelligence agencies that could torture them and extract information the C.I.A. thought it couldnâ??t otherwise obtain. However, what this abuse has yielded from the top Al Qaeda lieutenants is questionable. And I think thatâ??s because itâ??s untrustworthy information obtained under torture.
Q. So the problem with torture isnâ??t just that itâ??s tortureâ?? that it compromises America ethically, morallyâ??but that torture doesnâ??t always work.
A. It doesnâ??t work. It often is misleading, as in the case of Ibn al-Sheikh al-Libi, an Al Qaeda lieutenant who was tortured into saying that Saddam Hussein worked with Al Qaeda and had weapons of mass destruction. That was the information that the U.S. was trying to get out of him, and he gave it to the interrogators under torture, and that became part of the rationale for the U.S. going to war with Iraqâ??a disastrous consequence of choosing an unethical approach to gaining information.
Conforming to the Geneva convention would allow us to torture, shoot, hang or otherwise discomfort any terrorist we captured because they would not be lawful combatants.
Incorrect. The “lawful/unlawful combatant” bit bears no relation to reality. What do you think Common Article 3 is for, anyway?
Ah. You want some cream and sugar for those cherries?
Anderson,
1) Soufana’s questioning would not be allowed under article 3 if a captured legal combatant said to stop.
2) The Geneva convention very clearly spells out the differences between a legal and illegal combatant. Being an illegal combatant means you don’t get the Geneva protection.