   MILNET Brief  An Analysis by MILNET Chief Editor Michael Crawford "The Third Geneva Convention affords specific protections to prisoners of war: that is, lawful or privileged combatants who have been captured while taking part in hostilities. POW status is generally limited to two categories: members of the armed forces of nations that are parties to the conflict, and members of militias and organized resistance movements that belong to a nation that is a party to the conflict, provided they fulfill the conditions mentioned above (being part of a formal chain of command, wearing uniforms, etc.). " - Andrew McCarthy, Torture: Thinking about the Unthinkable, Commentary Magazine, |
Our Chief Editor introduces a topic of concern in
the U.S. and around the world. "I was driven to distraction by
the
controversy over what some might call torture and others might call "a
walk
in the park" compared to what Saddam Hussein did to his own people in
Abu Ghraib prison." The article enclosed examines the issue from
two viewpoints and then draws our Chief Editor's conclusion.
- MILNET
- MILNET
Interrogation
versus Torture In The War on Terror
By Michael Crawford
Torture is on the most base of our responses to violence. When it seeks to exact revenge it becomes intolerable by even the most hawkish citizens of the world. Even faced with more severe abuses that are clearly torturous to the most vicious, some will proclaim humiliation as torture. We ARE better than that, and when U.S. soldiers stoop to that kind of behavior, it angers us because we identify with U.S. soldiers. My son does, he could be over there in the place of some of those poor sods. And the point is understood throughout the country. U.S. federal law prohibits torture at the hands of U.S. citizens, even if they are not in the U.S. at the time and even if those they are torturing are not U.S. citizens. In this country, a person can go to jail for torturing an animal.
However, the world is not black and white as civil libertarians wish it to be. The fact is that war itself will create murder of civilians and yes torture of combatants. To think otherwise is beyond naive, it borders on the insane rationalizations of those who wish to escape from the real world. Anyone serving in Bosnia could tell you that hundreds of thousands of people protected by the Geneva convention were never-the-less subjected to treatment far worse than in Abu Ghraib prison. While a leader or two may wind up living in prison for the rest of their lives, those who did the deed will never be charged, let alone serve any time. The fact of the matter is that every war has evil inherent in its prosecution.
The question becomes whether such evil is necessary or punishable. Our military courts are assuming it is and several indictments and sentences have proven that it is.
The rule of law applies -- in that many of the combatants in Abu Ghraib were indeed prisoners of war, having qualified at the time of their capture due to their wearing a uniform, carrying a weapon, and being in the chain of command of Saddam Hussein's military. Not all, mind you, but many.
Thus the quote at the beginning of this article. If you haven't read Andrew McCarthy's long and well written treatise on the subject you should. I also have included in the further reading section below, a reference to an even less libertarian and perhaps not as well laid out view by Bob Weir. Bob goes as far as to say not torturing someone who knows where a bomb is that will kill 500 school kids is not noble, he is simply stupid. I can heartily agree with that.
This must be stated up front. I personally am somewhat of a coward. I cry and whine at pain and could not stand up to much humiliation. However in my life, I have voluntarily subjected myself to such in the hopes of improving my sensitivity to others and to hopefully understand myself better.
I realize at writing this, that the treatment I was exposed to was perhaps a lot like some of the treatment at Abu Ghraib, and I know from experience that it did not stay with me long -- I wonder if the real impact upon the victims at Abu Ghraib. Were they as traumatized a few months after their experience? This question plagues me because I also realize that if one were to ask them that question in this heightened period of sensitivity, they might very well give the answer civil libertarians wish. Will they answer the same one year from that imprisonment? After ten years? I would contrast that to victims of the holocaust and see just how traumatic Abu Ghraib really was.
In any case, I want to discuss the War on Terror in general, not Abu Ghraib. It (the prison abuses) only serve to raise the issue, not define it.
Terrorists
First of all, terrorists are not human. Yes, I said that. Sue me. I define human as those who purport to be human must treat others with humanity. I am reminded of science fiction's treatments of cyborgs and robots as non-human. They are not human therefore we can treat them as less than human and hope to not feel any guilt. Of course, we apply humanity toward animals as well in our libertarian and liberal society, so thus cruel treatment of animals might apply more to terrorists than cruel treatment to human. I leave that distinction to the reader.
I write that terrorists are not human for the simple reason that the defy civilization -- you must concede with me that while our current civilization is not perfect it is far better than that of Julius Caesar for instance. Our civilization rationalizes that war occurs and in that event, evil things happen. Cities can get bombed and innocents killed. The military's job, in time of peace and war, is to ensure that its civilian population is protected, even at the cost of the military personnel's life if it cannot be avoided.
Military officers in particular are given the responsibility (delegated to that magnificent human the Sergeant) to protect those military personnel subordinate to them. Anyone who thinks Generals are uncaring and throw away military lives, or that Secretary Rumsfeld is uncaring is in fact an idiot without a clue as to the real world. Spend a little time with them in the real world and you will see a far different person than some media outlets are attempting to paint them.
Back to the point. Protecting civilians does not mean protecting civilians who pick up a weapon. Once a civilian picks up a weapon, he becomes a combatant. If he or she is not wearing a uniform at the time, and does not answer to a chain of command to the nation or its militia, he or she becomes an unqualified combatant.
Worse than a spy, the unqualified combatant can be shot on the spot and without any compunction. Why? Because wars are evil and it is hard enough to fight them when the sides wear uniforms and follow the chain of command. This is not supposition, it has been recognized since all recorded history and remains a fact in today's well codified rule of law. I call your attention to the quote again,
Moreover, he and his followers don't wear uniforms, and clearly have no concept of protecting innocents in any way, shape, or form. And indeed, the Geneva conventions * also makes it clear that even if you could consider Zarqawi associated with the nation of Iraq, they relegate their opponents following the conventions simply because Zarqawi people do not. While the world community might wring their hands at it, Iraq's interim government and the Coalition aiding them can do anything they want to Zarqawi and his people. They lost any possible claim to rights at the first beheading, not to mention car bombing, hostage taking, and public executions.
The problem you see is that we, as civilized people do set up rules. We believe in them, even if they function to perform evil things. We kill murders. A lot more nicely than previously as Andrew McCarthy points out, but we do it never-the-less. In war, we allow inflicting of casualties with just about any weapon we can muster. The United States is legally bound by ratified treaties not to use some weapons unless first used against us -- for instance WMD. But we can use teflon bullets if the other guy wears armor and we can wear better armor with if the other guy is using teflon bullets. That is warfare.
Our rules of war seek to carefully point out who are "protected combatants". Soldiers are defined quite well. Al Qaeda, Hamas, and Hezbollah simply don't qualify. Why not? Is this some western conspiracy? Of course not. They don't qualify exactly for the reason they do not wish to qualify until captured. They do not wear uniforms so they can sneak up on those who do or hide among civilians, both of which disqualify them to civilized rules of law. Many who wring their hands at this decry that war is evil and therefore speaking about the rule of law in such sentences is speaking nonsense. That attitude is ignorant beyond belief and only serves to hurry the impending death of the very civilization that allows them to wring their hands in relative comfort and far from danger.
Here is how Andrew McCarthy penned this notion in a manner far better than I:
Many libertarians jump at that notion of protecting civilians as applying to Al Qaeda. They aren't soldiers, therefore they must be civilians. If they pick up a gun, are they not criminals -- a special class of civilian that suddenly gives them a whole new set of rights and protections?
Unfortunately for Al Qaeda, this is not the case. McCarthy has boiled this down to a few key paragraphs:
The key here is the phrase "persons taking no active part in the hostilities". Al Qaeda, Hamas, Hezbollah, Al Zarqawi's followers not only take part in the hostilities, they foment, cause, perform and then brag about the hostilities they create!
So if they are not soldier, not civilian, and not criminals, then what are they?
The Conventions have a clear view as to what they are. Unqualified combatants. This is a simple statement with huge consequences. If a soldier strips his uniform and poses as a civilian, as terrorists do on a routine basis, they become Unqualified Combatants. The conventions are clear - they can be shot on the spot. During World War II for instance, this was common. You encounter a irregular, you can simply execute them and move on. Only if the combatant is in uniform do you apply the conventions. Otherwise, the already dangerous battlefield becomes ten times as dangerous. Guess what, that is exactly what Al Qaeda wants libertarians to help them do - make the battlefield ten times more dangerous. When the bleeding hearts whine at the treatment of Al Qaeda and their ilk, that is exactly what they are doing, aiding and providing comfort to the enemy at a time of war. There is a vast difference between questioning the government and aiding. Some would have such questions asked quietly and carried forward until the war ends before addressing them. Indeed, many of older Americans will note that was what happened in WWII, Roosevelt and his cabinet carefully noting such issues along with their Congressional colleagues and which were addressed after the war by Truman and Eisenhower.
McCarthy also points out there was a later effort in 1971 to add a new provision to the Conventions, one in which the U.S. Congress as well as the Executive Branch of the U.S government have steadfastly chosen NOT to ratify. It is Protocol I Additional, dated June 8, 1977 and relating to the "Protection of Victims of International Armed Conflicts." Europeans adopted the protocol but again I need to emphasis, the U.S. did not. The rationale is obvious today, but perhaps not so obvious at the time.
Protocol I "pushed to extend Geneva protections to members of non state militias—often, guerrillas engaged in fighting colonial powers or other regimes backed by the West (especially the United States)." This was an effort on the part of many of the Socialist European governments to thwart anti-socialist American efforts throughout the world in the 1970s. Constant liberal attempts to ratify Protocol I have been regularly rebuffed by huge margins in Congress over the decades and only today is there interest again. Clearly, in today's War on Terror, the only beneficiaries to such policy would be Al Qaeda and their brethren. As the U.S. HAS NOT ratified Protocol I, terrorists are still unqualified combatants and do not fall under the auspices of the Conventions.
Back to torture. Mcarthy points out that regardless of whether terrorists are unqualified combatants only matters to military treatment of these combatants. Once they are removed from the battlefield, it is arguable that they become prisoners under the care of U.S. citizens. That is where law once again applies. As I stated earlier, it is against Federal law to torture anyone. Period. Simple.
We can turn to the law or the Conventions once again an both are pretty clear on this score.
McCarthy again points this out clearly:
Torture and similar treatment are protected by federal law, as McCarthy notes:
Since it is illegal under federal law to torture anyone, then the definition of treatment becomes the issue. So it all boils down to what is torture. McCarthy pulls out the definitions (which are long and laborious) and paraphrases them for us:
Thus the prosecutions of those military personnel at Abu Ghraib -- the Military Code of Justice (MoJ) does not call out this particular repudiation of U.S. law and all military are subject to any U.S. law no matter where they are, as long as that law is not modified by the MoJ specifically. Regardless of POW status at the prison, abuses were illegal.
But as to Al Qaeda, the law may remain clear.
And this is where reality invades our precise definition of the law. If I have Zarqawi's top Lt. in my hands, I am probably going to humiliate him, threaten him with death, and maybe threaten to force him to eat a little pork (assuming he is a devout Muslim and that to him this is a fate worse then death). My point is that I, the coward, would probably find it quite easy to inflict a little torture on Zarqawi's Lt.
Why? Because, like any human I am weak. I am weak enough to want to know where the next car bomb, IED, or kidnapping and subsequent beheading is likely to take place, and I am not going to let a little thing like the rule of law hold me back. I speed in my car on occasion, I will break this federal law on occasion. And that of course is what freaks libertarians out. Liberals too, because most liberals are happy to bend and break laws in the privacy of their own lives, but will not admit to it in public unless it has to do with excesses that their compatriots judge as admirable -- like wild sex and a new wife every six months. My point, if you can ignore the jab, is that I will admit to being weak enough to more than just want to break Federal laws on torturing of Al Qaeda and their brethren.
Why? Because I am base enough to see that if they are fighting this war like that, then keeping my hands pristine is a fool's errand and as dangerous to my family, friends, city, state, and nation as they are.
Let's make that VERY clear. We are at war for our very existence. It's worth repeating. We are at war for our very existence. If you doubt that, take a look at any Bin Laden tape. If it isn't clear to you that in this man's view of the world set "right", we cannot exist, then you need to sit down and reflect on who you are and what your daily life means. If you don't attend a Whabbist Mosque, chances are that you are not worthy of life on this planet, and your fate is not better than Daniel Pearl. Even if you attend Mosque, there is still a good chance that you are a dead man walking. If you are in or a supporter of the Saudi Royal Family, you're dead meat. If you are the King of Jordan, you probably have only a 50-50 chance of living through the night, and if you are Israeli or a Jew living anywhere in the world, I couldn't promise you five minutes.
The fact is that almost every middle eastern terrorist organization (MILNET has a nice list for you) will kill you at best, and torture you at worst. You. Not just me, or Rumsfeld, or GW. You! Paint a freakin' target on your forehead and get a clue.
Thus if torturing one of hose nut cases damages my standing in the community of nations, so be it, point me the way. Of course, I don't have much to worry about, not many 53 year old cowards get called to torture Al Qaeda detainees. But if anyone is looking for volunteers, I am here.
Thus we have the reality of torture. No, in a perfect world we should not have to do it. But in THIS world, volunteers are numerous and we, as a nation, may very well need to do it. Yes, that's right, we have to start thinking about changing our laws so that we can. That is what Andrew McCarthy is proposing, seriously, and I quite agree. Here I quote McCarthy in a large extent to lessen my coloration of the concept:
* NOTE: The Geneva Conventions, parts one through four are binding as law on the U.S. and its citizens. In 1971 the U.S. Congress, at the urging of the Executive Branch (Gerald Ford's administration) failed to ratify follow-on codicils to the Geneva Convention which would have given terrorists the same rights as military personnel and medical personal in the war theater. At the time, libertarians and liberals alike screamed. Today, we find it comforting that Al Qaeda, who murders innocents daily, wears no uniform and follows no conventions of war, are not protected by U.S. law based on the Geneva Conventions. Congress has steadfastly refused to approve the Protocol I and II since then. Congress watchers should keep an eye out though, Terrorist rights supporters abound in this country.
Relevant Quote:
U.S. Army/U.S. Department of Defense, J-03-07 Doctrine Document, Appendix B-24, B-25, and B-26 (pgs B-6 and B-7):
Further Reading:
By Michael Crawford
Torture is on the most base of our responses to violence. When it seeks to exact revenge it becomes intolerable by even the most hawkish citizens of the world. Even faced with more severe abuses that are clearly torturous to the most vicious, some will proclaim humiliation as torture. We ARE better than that, and when U.S. soldiers stoop to that kind of behavior, it angers us because we identify with U.S. soldiers. My son does, he could be over there in the place of some of those poor sods. And the point is understood throughout the country. U.S. federal law prohibits torture at the hands of U.S. citizens, even if they are not in the U.S. at the time and even if those they are torturing are not U.S. citizens. In this country, a person can go to jail for torturing an animal.
However, the world is not black and white as civil libertarians wish it to be. The fact is that war itself will create murder of civilians and yes torture of combatants. To think otherwise is beyond naive, it borders on the insane rationalizations of those who wish to escape from the real world. Anyone serving in Bosnia could tell you that hundreds of thousands of people protected by the Geneva convention were never-the-less subjected to treatment far worse than in Abu Ghraib prison. While a leader or two may wind up living in prison for the rest of their lives, those who did the deed will never be charged, let alone serve any time. The fact of the matter is that every war has evil inherent in its prosecution.
The question becomes whether such evil is necessary or punishable. Our military courts are assuming it is and several indictments and sentences have proven that it is.
The rule of law applies -- in that many of the combatants in Abu Ghraib were indeed prisoners of war, having qualified at the time of their capture due to their wearing a uniform, carrying a weapon, and being in the chain of command of Saddam Hussein's military. Not all, mind you, but many.
Thus the quote at the beginning of this article. If you haven't read Andrew McCarthy's long and well written treatise on the subject you should. I also have included in the further reading section below, a reference to an even less libertarian and perhaps not as well laid out view by Bob Weir. Bob goes as far as to say not torturing someone who knows where a bomb is that will kill 500 school kids is not noble, he is simply stupid. I can heartily agree with that.
This must be stated up front. I personally am somewhat of a coward. I cry and whine at pain and could not stand up to much humiliation. However in my life, I have voluntarily subjected myself to such in the hopes of improving my sensitivity to others and to hopefully understand myself better.
I realize at writing this, that the treatment I was exposed to was perhaps a lot like some of the treatment at Abu Ghraib, and I know from experience that it did not stay with me long -- I wonder if the real impact upon the victims at Abu Ghraib. Were they as traumatized a few months after their experience? This question plagues me because I also realize that if one were to ask them that question in this heightened period of sensitivity, they might very well give the answer civil libertarians wish. Will they answer the same one year from that imprisonment? After ten years? I would contrast that to victims of the holocaust and see just how traumatic Abu Ghraib really was.
In any case, I want to discuss the War on Terror in general, not Abu Ghraib. It (the prison abuses) only serve to raise the issue, not define it.
Terrorists
First of all, terrorists are not human. Yes, I said that. Sue me. I define human as those who purport to be human must treat others with humanity. I am reminded of science fiction's treatments of cyborgs and robots as non-human. They are not human therefore we can treat them as less than human and hope to not feel any guilt. Of course, we apply humanity toward animals as well in our libertarian and liberal society, so thus cruel treatment of animals might apply more to terrorists than cruel treatment to human. I leave that distinction to the reader.
I write that terrorists are not human for the simple reason that the defy civilization -- you must concede with me that while our current civilization is not perfect it is far better than that of Julius Caesar for instance. Our civilization rationalizes that war occurs and in that event, evil things happen. Cities can get bombed and innocents killed. The military's job, in time of peace and war, is to ensure that its civilian population is protected, even at the cost of the military personnel's life if it cannot be avoided.
Military officers in particular are given the responsibility (delegated to that magnificent human the Sergeant) to protect those military personnel subordinate to them. Anyone who thinks Generals are uncaring and throw away military lives, or that Secretary Rumsfeld is uncaring is in fact an idiot without a clue as to the real world. Spend a little time with them in the real world and you will see a far different person than some media outlets are attempting to paint them.
Back to the point. Protecting civilians does not mean protecting civilians who pick up a weapon. Once a civilian picks up a weapon, he becomes a combatant. If he or she is not wearing a uniform at the time, and does not answer to a chain of command to the nation or its militia, he or she becomes an unqualified combatant.
Worse than a spy, the unqualified combatant can be shot on the spot and without any compunction. Why? Because wars are evil and it is hard enough to fight them when the sides wear uniforms and follow the chain of command. This is not supposition, it has been recognized since all recorded history and remains a fact in today's well codified rule of law. I call your attention to the quote again,
"The Third Geneva Convention affords specific protections to prisoners of war: that is, lawful or privileged combatants who have been captured while taking part in hostilities. POW status is generally limited to two categories: members of the armed forces of nations that are parties to the conflict, and members of militias and organized resistance movements that belong to a nation that is a party to the conflict, provided they fulfill the conditions mentioned above (being part of a formal chain of command, wearing uniforms, etc.). " 1Terrorist organizations such as Al Qaeda, Hamas or Hezbollah (just to name a few) are not "members of militias and organized resistance movements that belong to a nation that is party to the conflict." Zarqawi, for instance, just because he is living in Iraq currently, is not a member of an organized resistance in Iraq. He migrated to Iraq specifically to fight.
Moreover, he and his followers don't wear uniforms, and clearly have no concept of protecting innocents in any way, shape, or form. And indeed, the Geneva conventions * also makes it clear that even if you could consider Zarqawi associated with the nation of Iraq, they relegate their opponents following the conventions simply because Zarqawi people do not. While the world community might wring their hands at it, Iraq's interim government and the Coalition aiding them can do anything they want to Zarqawi and his people. They lost any possible claim to rights at the first beheading, not to mention car bombing, hostage taking, and public executions.
The problem you see is that we, as civilized people do set up rules. We believe in them, even if they function to perform evil things. We kill murders. A lot more nicely than previously as Andrew McCarthy points out, but we do it never-the-less. In war, we allow inflicting of casualties with just about any weapon we can muster. The United States is legally bound by ratified treaties not to use some weapons unless first used against us -- for instance WMD. But we can use teflon bullets if the other guy wears armor and we can wear better armor with if the other guy is using teflon bullets. That is warfare.
Our rules of war seek to carefully point out who are "protected combatants". Soldiers are defined quite well. Al Qaeda, Hamas, and Hezbollah simply don't qualify. Why not? Is this some western conspiracy? Of course not. They don't qualify exactly for the reason they do not wish to qualify until captured. They do not wear uniforms so they can sneak up on those who do or hide among civilians, both of which disqualify them to civilized rules of law. Many who wring their hands at this decry that war is evil and therefore speaking about the rule of law in such sentences is speaking nonsense. That attitude is ignorant beyond belief and only serves to hurry the impending death of the very civilization that allows them to wring their hands in relative comfort and far from danger.
Here is how Andrew McCarthy penned this notion in a manner far better than I:
"Militant Islamic terrorists like those belonging to al Qaeda manifestly do not qualify for POW status because they are not lawful combatants: they are not part of a nation state, they are not signatories of the Geneva Conventions, they do not wear uniforms, they do not as a rule carry their weapons openly, they hide among (and thus gravely imperil) civilian population and infrastructure, and they intentionally target civilians for indiscriminate mass homicide in order to extort concessions from governments they oppose. As a result, they do not enjoy the special privileges of POWs, such as entitlements during interrogation to limit their answers to "pedigree" information and to refuse to answer other questions." 1Of course this statement does not address the issue of torture. Even if it did, one might judge, if Al Qaeda don't qualify, then the Conventions don't apply either. Except for one fact that troubles all of us. The Conventions didn't stop at describing prisoners of war...or some interpretation of that particular status. Looking back (and believe me it was a long process) at the framer's remarks at the time of the ratification of the Conventions, it becomes clear that they intended to make sure that civilians did not lose protection as civilians because they weren't soldiers. In other words, you can't treat a civilian worse than a soldier because they aren't a protected soldier. Remember, the idea is to protect civilians.
Many libertarians jump at that notion of protecting civilians as applying to Al Qaeda. They aren't soldiers, therefore they must be civilians. If they pick up a gun, are they not criminals -- a special class of civilian that suddenly gives them a whole new set of rights and protections?
Unfortunately for Al Qaeda, this is not the case. McCarthy has boiled this down to a few key paragraphs:
"Persons taking no active part in the
hostilities, including members of
the armed forces who have laid down their arms and those placed hors de
combat by . . . detention . . . shall in all circumstances be treated
humanely[,] [and not subjected to] violence to life and person, in
particular, murder of all kinds, mutilation, cruel treatment and
torture[,] [nor to] outrages upon personal dignity, in particular
humiliating and degrading treatment. [Emphasis added.] " 1
The key here is the phrase "persons taking no active part in the hostilities". Al Qaeda, Hamas, Hezbollah, Al Zarqawi's followers not only take part in the hostilities, they foment, cause, perform and then brag about the hostilities they create!
So if they are not soldier, not civilian, and not criminals, then what are they?
The Conventions have a clear view as to what they are. Unqualified combatants. This is a simple statement with huge consequences. If a soldier strips his uniform and poses as a civilian, as terrorists do on a routine basis, they become Unqualified Combatants. The conventions are clear - they can be shot on the spot. During World War II for instance, this was common. You encounter a irregular, you can simply execute them and move on. Only if the combatant is in uniform do you apply the conventions. Otherwise, the already dangerous battlefield becomes ten times as dangerous. Guess what, that is exactly what Al Qaeda wants libertarians to help them do - make the battlefield ten times more dangerous. When the bleeding hearts whine at the treatment of Al Qaeda and their ilk, that is exactly what they are doing, aiding and providing comfort to the enemy at a time of war. There is a vast difference between questioning the government and aiding. Some would have such questions asked quietly and carried forward until the war ends before addressing them. Indeed, many of older Americans will note that was what happened in WWII, Roosevelt and his cabinet carefully noting such issues along with their Congressional colleagues and which were addressed after the war by Truman and Eisenhower.
McCarthy also points out there was a later effort in 1971 to add a new provision to the Conventions, one in which the U.S. Congress as well as the Executive Branch of the U.S government have steadfastly chosen NOT to ratify. It is Protocol I Additional, dated June 8, 1977 and relating to the "Protection of Victims of International Armed Conflicts." Europeans adopted the protocol but again I need to emphasis, the U.S. did not. The rationale is obvious today, but perhaps not so obvious at the time.
Protocol I "pushed to extend Geneva protections to members of non state militias—often, guerrillas engaged in fighting colonial powers or other regimes backed by the West (especially the United States)." This was an effort on the part of many of the Socialist European governments to thwart anti-socialist American efforts throughout the world in the 1970s. Constant liberal attempts to ratify Protocol I have been regularly rebuffed by huge margins in Congress over the decades and only today is there interest again. Clearly, in today's War on Terror, the only beneficiaries to such policy would be Al Qaeda and their brethren. As the U.S. HAS NOT ratified Protocol I, terrorists are still unqualified combatants and do not fall under the auspices of the Conventions.
Back to torture. Mcarthy points out that regardless of whether terrorists are unqualified combatants only matters to military treatment of these combatants. Once they are removed from the battlefield, it is arguable that they become prisoners under the care of U.S. citizens. That is where law once again applies. As I stated earlier, it is against Federal law to torture anyone. Period. Simple.
We can turn to the law or the Conventions once again an both are pretty clear on this score.
McCarthy again points this out clearly:
"The first reason is that the United States is a signatory to an international treaty barring torture: this is the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The treaty is dated December 10, 1984 and was ratified in 1994, thus earning the force of binding law. The second reason is that federal law also categorically prohibits torture. ...signatory state must "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman, or degrading treatment or punishment" even if they are not so severe as to "amount to torture as defined in Article 1." 1That pretty much is that. "Cruel, inhuman, or degrading treatment or punishment." Some libertarians argue that capital punishment is in fact already abrogates the treaty, however as McCarthy later points out, the U.S. carefully negotiated a disclaimer over capital punishment into the treaty just for that reason.
Torture and similar treatment are protected by federal law, as McCarthy notes:
"American courts, including the Supreme Court, have held that its protection extends only to those already convicted of crimes; that is, the "punishments" it regulates are those meted out after guilty verdicts. Similarly with the government's mandate under the Fifth and Fourteenth Amendments to provide "due process of law": again, that term pertains almost exclusively to judicial proceedings and its substantive content is, to put it mildly, highly debatable." 1This does leave the door open to "treatment" of detainees versus "treatment" of prisoners. The recent U.S. Supreme Court ruling that detainees must become prisoners or released in a reasonable timeframe means that the high court recognizes that even if the detainees at Guantanimo Bay are not protected combatants as in P.O.W., they must be charged (defined as a unqualified combatant) or released. The U.S. government is now in the process of making those determinations and has begun tribunals to determine that qualification or release.
Since it is illegal under federal law to torture anyone, then the definition of treatment becomes the issue. So it all boils down to what is torture. McCarthy pulls out the definitions (which are long and laborious) and paraphrases them for us:
"Federal law also makes "severe mental
pain or suffering" actionable
with respect to a wide variety of menacing behavior. As long as mental
harm is "prolonged," it is grounds for torture charges if the harm
results from the intentional or threatened infliction of severe
physical pain or suffering; from the administration or threatened
administration of "mind-altering substances or other procedures
calculated to disrupt profoundly the senses or the personality"; from a
"threat of imminent death"; or from threats that another person will
imminently be subjected to such abuses. Not only those who engage in
such behavior but those who conspire to engage in it, even if they are
unsuccessful, are subject to prosecution." 1
Thus the prosecutions of those military personnel at Abu Ghraib -- the Military Code of Justice (MoJ) does not call out this particular repudiation of U.S. law and all military are subject to any U.S. law no matter where they are, as long as that law is not modified by the MoJ specifically. Regardless of POW status at the prison, abuses were illegal.
But as to Al Qaeda, the law may remain clear.
And this is where reality invades our precise definition of the law. If I have Zarqawi's top Lt. in my hands, I am probably going to humiliate him, threaten him with death, and maybe threaten to force him to eat a little pork (assuming he is a devout Muslim and that to him this is a fate worse then death). My point is that I, the coward, would probably find it quite easy to inflict a little torture on Zarqawi's Lt.
Why? Because, like any human I am weak. I am weak enough to want to know where the next car bomb, IED, or kidnapping and subsequent beheading is likely to take place, and I am not going to let a little thing like the rule of law hold me back. I speed in my car on occasion, I will break this federal law on occasion. And that of course is what freaks libertarians out. Liberals too, because most liberals are happy to bend and break laws in the privacy of their own lives, but will not admit to it in public unless it has to do with excesses that their compatriots judge as admirable -- like wild sex and a new wife every six months. My point, if you can ignore the jab, is that I will admit to being weak enough to more than just want to break Federal laws on torturing of Al Qaeda and their brethren.
Why? Because I am base enough to see that if they are fighting this war like that, then keeping my hands pristine is a fool's errand and as dangerous to my family, friends, city, state, and nation as they are.
Let's make that VERY clear. We are at war for our very existence. It's worth repeating. We are at war for our very existence. If you doubt that, take a look at any Bin Laden tape. If it isn't clear to you that in this man's view of the world set "right", we cannot exist, then you need to sit down and reflect on who you are and what your daily life means. If you don't attend a Whabbist Mosque, chances are that you are not worthy of life on this planet, and your fate is not better than Daniel Pearl. Even if you attend Mosque, there is still a good chance that you are a dead man walking. If you are in or a supporter of the Saudi Royal Family, you're dead meat. If you are the King of Jordan, you probably have only a 50-50 chance of living through the night, and if you are Israeli or a Jew living anywhere in the world, I couldn't promise you five minutes.
The fact is that almost every middle eastern terrorist organization (MILNET has a nice list for you) will kill you at best, and torture you at worst. You. Not just me, or Rumsfeld, or GW. You! Paint a freakin' target on your forehead and get a clue.
Thus if torturing one of hose nut cases damages my standing in the community of nations, so be it, point me the way. Of course, I don't have much to worry about, not many 53 year old cowards get called to torture Al Qaeda detainees. But if anyone is looking for volunteers, I am here.
Thus we have the reality of torture. No, in a perfect world we should not have to do it. But in THIS world, volunteers are numerous and we, as a nation, may very well need to do it. Yes, that's right, we have to start thinking about changing our laws so that we can. That is what Andrew McCarthy is proposing, seriously, and I quite agree. Here I quote McCarthy in a large extent to lessen my coloration of the concept:
"Federal law also makes "severe mental pain or suffering" actionable with respect to a wide variety of menacing behavior. As long as mental harm is "prolonged," it is grounds for torture charges if the harm results from the intentional or threatened infliction of severe physical pain or suffering; from the administration or threatened administration of "mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality"; from a "threat of imminent death"; or from threats that another person will imminently be subjected to such abuses. Not only those who engage in such behavior but those who conspire to engage in it, even if they are unsuccessful, are subject to prosecution.
"All of which is to suggest that a significant gap exists between our wishes and reality. This is hardly unusual, either in life or in law. Take the canons of ethics that govern the behavior of attorneys. They are divided into two sections: ethical considerations and disciplinary rules. The former are the high principles that lawyers are enjoined to emulate; the latter are threshold commands of which they must not fall short on pain of sanction. So it is with torture. Even as we sincerely aspire never to resort to it, we are required to acknowledge that there are some instances in which it might be employed; therefore, it is incumbent upon us to regulate how and under what circumstances that could permissibly be done, and to prosecute aggressively those who step outside the parameters we undertake to define.You can read Dershowitz's interview on CNN 6 to get the flavor of his comments for yourself.
. . .
"The task, then, is to create controlled, highly regulated, and responsibly accountable conditions. Toward this end, Dershowitz has proposed the notion of torture warrants. 6 Under such a system, the government would have to apply to a federal court for permission to administer a predetermined form of non-lethal torture. The warrant would be issued only on a showing of reasonable grounds for believing that a catastrophe was impending, that the person to be subjected to torture had information about this event, that he had been given immunity (meaning, his statements could not be used against him in court and therefore he could not invoke the Fifth Amendment privilege against self-incrimination as a basis for refusing to answer), and that he had nevertheless remained silent.
"Other conditions might be added. There could be limitations on who would be eligible for such treatment: for example, convicted terrorists or those who, even if not previously convicted, could be demonstrated to be terrorists according to some rigorous standard of proof. Application would have to be made with the approval of a high-ranking government official—the decision could not be entrusted to a twenty-three year-old reservist assigned as custodian of a brig for mass murderers. Since torture would now be permitted, under stricture and with scrupulous judicial monitoring, no excuse would exist for engaging in torture outside the process, and those shown to have done so would be vigorously prosecuted. " 1
* NOTE: The Geneva Conventions, parts one through four are binding as law on the U.S. and its citizens. In 1971 the U.S. Congress, at the urging of the Executive Branch (Gerald Ford's administration) failed to ratify follow-on codicils to the Geneva Convention which would have given terrorists the same rights as military personnel and medical personal in the war theater. At the time, libertarians and liberals alike screamed. Today, we find it comforting that Al Qaeda, who murders innocents daily, wears no uniform and follows no conventions of war, are not protected by U.S. law based on the Geneva Conventions. Congress has steadfastly refused to approve the Protocol I and II since then. Congress watchers should keep an eye out though, Terrorist rights supporters abound in this country.
Relevant Quote:
U.S. Army/U.S. Department of Defense, J-03-07 Doctrine Document, Appendix B-24, B-25, and B-26 (pgs B-6 and B-7):
"The
law of war applies to all cases of declared war or any other armed
conflicts that arise between the US and other nations, even if the
state of war is not recognized by one of them. It also applies to
cases of partial or total occupation. Common article 2 of the
Geneva Conventions discusses such occupations. Armed conflicts
such as the Falklands War, the Iran-Iraq War, and Operation Desert
Storm were clearly international armed conflicts to which the law of
war applied. While the 1977 Protocol I to the 1949 Geneva
Conventions has expanded the application to include certain wars of
"national liberation", the US does not recognized this extension of the
law of war.
B-25 In peace operations, such as those in Somalia, Haiti, and Bosnia, the question arises whether the law of war applies. The issue hinges on whether the peace operations forces undertake a combatant role. So far, the US, UN, and NATO believe that their forces have not become combatants, despite carrying out offensive-type operations, such as the use of Task Force Ranger in Somalia and Operations DENY FLIGHT and DELIBERATE FORCE in Bosnia. Although the law of war does not apply to these operations, the US, UN, and NATO have their forces apply the "principle and spirit" of the law of war in these operations.
B-26. This approach is consistent with DOD policy to comply with the law of war "in the conduct of military operations and related activities in armed conflict, however, such conflicts are characterized" (DODD 5100.77, paragraph 5.3.1). CJCSI 5810.01B, paragraph 4.a. states that the US forces :will comply with the law of war during all armed conflicts, however such conflicts are characterized, and unless otherwise directed by competent authorities." In applying DOD policy, however, allowance must be made during these operations. US forces often lack the resources to comply with the law of war to the letter. The US complies with the law of war to the extent "practicable and feasible" (memorandum of W. Hays Parks to the judge advocate general of the Army, 1 October 1990)."
B-25 In peace operations, such as those in Somalia, Haiti, and Bosnia, the question arises whether the law of war applies. The issue hinges on whether the peace operations forces undertake a combatant role. So far, the US, UN, and NATO believe that their forces have not become combatants, despite carrying out offensive-type operations, such as the use of Task Force Ranger in Somalia and Operations DENY FLIGHT and DELIBERATE FORCE in Bosnia. Although the law of war does not apply to these operations, the US, UN, and NATO have their forces apply the "principle and spirit" of the law of war in these operations.
B-26. This approach is consistent with DOD policy to comply with the law of war "in the conduct of military operations and related activities in armed conflict, however, such conflicts are characterized" (DODD 5100.77, paragraph 5.3.1). CJCSI 5810.01B, paragraph 4.a. states that the US forces :will comply with the law of war during all armed conflicts, however such conflicts are characterized, and unless otherwise directed by competent authorities." In applying DOD policy, however, allowance must be made during these operations. US forces often lack the resources to comply with the law of war to the letter. The US complies with the law of war to the extent "practicable and feasible" (memorandum of W. Hays Parks to the judge advocate general of the Army, 1 October 1990)."
Further Reading:
- Torture: Thinking about the Unthinkable, Andrew McCarthy, Commentary Magazine, 7/14/2004
- Torture: Can we handle the truth, Bob Wier, The American Thinker, 1/8/2005
- The Geneva Convention, MILNET Mirror of the text of the ICRC documents in total.
- How
Should We Coerce Life-Saving Information from Terrorists?, Michael
M. Rosen, Tech Central Station, 1/11/2005
- How to Interrogate Terrorists, Heather MacDonald, City Journal, Winter, 2005
- Dershowitz - Torture Could Be Justified, CNN Access, 3/4/2003
- U.S.Dod
Publication J-03-07, Stability Operations and Support Operations,
Appendix B-24, pg. B-3, Law of War, February 2003
©
Copyright 2005, Michael Crawford for MILNET