MIRANDA RIGHTS FOR TERRORISTS?
By Neal Boortz
By Neal Boortz
It turns out that it is true .. the Obama administration has been reading Miranda rights to detainees that are captured and held abroad. But apparently this isn't new, according to ABC's Jake Tapper. The Bush administration did so as well "to preserve evidence for a potential prosecution."
Justice Department spokesman Matthew Miller says, "While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees."
I disagree with the policy, whether Bush's or Obama's. If the world is so sure that these Islamic goons have Geneva rights, let's give them those rights. Under the Geneva Convention enemy combatants dressed in civilian clothes can be summarily executed. No Miranda rights necessary. "You have the right to stand up against this wall. We have the right to put a slug in you. Stand by for your rights."
(The Daily Beast import)
A slight air of unreality has permeated the debate over “enhanced interrogation techniques” in the war against terror, with historians embarrassedly studying their toecaps over the issue. For the truth is that there has not been a war in history in which torture has not been employed in some form or another, and sometimes to excellent effect. When troops need information about enemy capabilities and intentions—and they usually need it fast—moral and ethical conventions (especially the one signed in Geneva in 1929) have repeatedly been ignored in the bid to save lives.
In the conflict generally regarded today as the most ethical in history, World War II, enhanced interrogation techniques were regularly used by the Allies, and senior politicians knew it perfectly well, just as we now discover that Nancy Pelosi did in the early stages of the war against terror. The very success of the D-Day landings themselves can largely be put down to the enhanced interrogation techniques that were visited upon several of the 19 Nazi agents who were infiltrated into Great Britain and “turned” by the British Secret Intelligence Service (SIS) between 1939 and 1945. Operation Fortitude—the deception plan that fooled the Germans into stationing 450,000 Wehrmacht troops 130 miles north of the Normandy beaches—entirely depended upon German intelligence (the Abwehr) believing that the real attack was going to take place at the Pas de Calais instead. The reason that Admiral Wilhelm Canaris, the head of the Abwehr, was utterly convinced of this, was because every single one of his 19 agents, who he did not know had been turned, told him so.
If anyone believes that SIS persuaded each of these 19 hard-bitten Nazi spies to fall in with Operation Fortitude by merely offering them tea, biscuits, and lectures in democracy, they’re being profoundly naïve. An SIS secret house located in Ham Common near Richmond on the outskirts of London was the location where the will of those agents was broken, using advanced interrogation techniques that reportedly started with sleep deprivation but went on to gross mental and physical abuse. The result? Many thousands of Allied servicemens’ lives were saved because the German 15th Army stayed well away from beaches such as Omaha, Utah, and Sword. And another 100,000 others were stationed in Norway for another attack that never came.
The wartime SIS being what it was, full firsthand details of the enhanced interrogation techniques have not emerged, either from the British or the German side since the war. In a country where the very existence of the wartime decryption operation known as Ultra was successfully kept secret until 1971, it was never likely that former SIS officers would have revealed precisely how the Abwehr agents were turned, but the talk and gossip in the intelligence community is another matter. Ham Common undoubtedly saw gross violations of the Geneva Conventions, as every means was used—fair and foul—to ensure the safety of Great Britain. Today Fortitude is generally considered to be the most successful strategic deception operation in the history of warfare.
Elsewhere, one only has to read George MacDonald Fraser’s excellent autobiography, Quartered Safe Out Here, with its description of the ill treatment of Japanese POWs by Indian soldiers of the 17th Division, to recognize that not all torture was committed by the Axis in WWII.
Did Winston Churchill know what was going on in the cellar-dungeons of the house in Ham? Of course he did, but like Nancy Pelosi and other politicians he understandably preferred not to dwell on this less auspicious side of the defense of freedom. As I show in my recently published book, Masters and Commanders—reviewed here yesterday by Michael Korda—Churchill always advocated the toughest option in any issue that came before his War Cabinet, be it over the bombing of German cities, allowing Mahatma Gandhi to die in his hunger strike, retaliating over the destruction of the Czech village of Lidice, and so on. The idea that he would have balked on ethical grounds over the breaking and turning of Abwehr agents—knowing how vitally necessary that was for the liberation of Europe—is ludicrous.
So, when we wring our hands about the waterboarding that took place at the hands of the CIA and their proxies in secret locations around the world, let us not pretend that such techniques are in any way historically exceptional, for in fact they constitute the norm. The only surprising thing is the extent of the information that we have been given about such unpleasant but ultimately necessary practices. Sometimes the defense of liberty requires making some pretty unpalatable decisions, but it was ever thus.
Historian Andrew Roberts' latest book, Masters and Commanders, was published in the U.K. in September. His previous books include Napoleon and Wellington, Hitler and Churchill, and A History of the English-Speaking Peoples Since 1900. Roberts is a fellow of the Royal Society of Literature and the Royal Society of Arts.
If the world treated WW2 the same way we treat the "War on Terrorism" and the "conflict in the Middle East" this is what it would have been like...
- March 15/16, 1939: Nazis take Czechoslovakia. (Other nations give mild condemnation of Nazi attack but urge Czechoslovakia to be restrained in their response.)
- May 22, 1939: Nazis sign 'Pact of Steel' with Italy. (Other nations declare that Italy and Germany signing pact to help each other take over the world "not helpful to the peace process.")
- Aug 23, 1939: Nazis and Soviets sign Pact. (The world heralds signing of treaty as a sign of Hitler's good intentions. He wouldn't be signing a peace treaty if he wanted war would he?)
- Sept 1, 1939: Nazis invade Poland. (Other nations give mild condemnation of Nazi attack but urge rest of the world to be restrained in their response.)
- Sept 3, 1939: Britain, France, Australia and New Zealand declare war on Germany. (World condemns these nations for declaring war. This may cause unrest in Europe!)
- Oct, 1939: Nazis begin euthanasia on sick and disabled in Germany. (World mildly condemns this but declares that we must understand the actions of Germany in the context of the horribly unfair treaty of Versailles.)
- April 9, 1940: Nazis invade Denmark and Norway. (Other nations give mild condemnation of Nazi attack but urge rest of the world to be restrained in their response.)
- May 10, 1940: Nazis invade France, Belgium, Luxembourg and the Netherlands (Other nations give mild condemnation of Nazi attack but urge rest of the world to be restrained in their response.)
- June 14, 1940: Germans enter Paris. (Other nations give mild condemnation of Nazi attack but urge rest of the world to be restrained in their response.)
- July 10, 1940: Battle of Britain begins. (Other nations give mild condemnation of Nazi attack but urge Britain to be restrained lest they further the "cycle of violence.")
- Aug 23/24: First German air raids on Central London. (Other nations give mild condemnation of Nazi attack but urge Britain to be restrained lest they further the "cycle of violence.")
- Aug 25/26: First British air raid on Berlin. (World outraged at British attacks! Civilians may have been killed by irresponsible British attacks! World votes 453-4 to condemn Britain!)
- Sept 13, 1940: Italians invade Egypt (Other nations give mild condemnation of Italian attack but urge rest of the world to be restrained in their response.)
- Nov 20, 1940: Hungary joins the Axis Powers. (World excited! Hopes Hungary may now have the influence to help move the peace process forward. World publicly says they applaud the peace effort they are sure Hungary will soon begin!)
- Nov 23, 1940: Romania joins the Axis Powers. (World excited! Hopes Romania may now have the influence to help move the peace process forward. World publicly says they applaud the peace effort they are sure Romania will soon begin!)
- Dec 9/10: British begin a western desert offensive in North Africa against the Italians. (World outraged at British attacks! How will we ever have peace if Britain keeps attacking the other side?)
- March 11, 1941: President Roosevelt signs the Lend-Lease Act. (World criticizes Americans for selling weaponry to combatants! Announces they should only give food, blankets, and tents if they're going to get involved at all.)
- May 10/11, 1941: Heavy German bombing of London; British bomb Hamburg. (World is outraged by British attack on Hamburg! Civilians may of been injured! World condemns Britain in strongest terms and demands they stop bombing anywhere civilians might be!)
- June 14, 1941: United States freezes German and Italian assets in America. (Americans accused of "hating all Germans and Italians". 32 lawsuits filed.)
- June 22, 1941: Germany attacks Soviet Union as Operation Barbarossa begins. (World upset that treaty broken. They urge president Roosevelt to personally sit down with Stalin and Hitler to negotiate new treaty.)
- Sept 29, 1941: Nazis murder 33,771 Jews at Kiev (Other nations give mild condemnation of Nazi murders but urge rest of the world to be restrained in their response.)
- Dec 7, 1941: Japanese bomb Pearl Harbor (Other nations give mild condemnation of Japanese attack but urge United States to be restrained in their response.)
- Dec 8, 1941: United States and Britain declare war on Japan. (Other nations outraged! Accuse United States of furthering "cycle of violence". World says that Roosevelt calling Dec 7, 1941 "a date which will live in infamy" is "simplistic" and "not helpful.")
- Jan 20, 1942: SS Leader Heydrich holds the Wannsee Conference to coordinate the "Final Solution of the Jewish Question." (World declares plan to kill all Jews is "not helpful". Urges Hitler to declare that exterminating all Jews is wrong in German.)
- Aug 17, 1942: First all-American air attack in Europe. (World outraged at American aggression! Suggests putting Roosevelt up for war crimes trial!)
- Oct 18, 1942: Hitler orders the execution of all captured British commandos. (World takes occasion to remind "Allies" that German prisoners should get extra bratwurst and beer for "Oktoberfest".)
- Jan 14-24, 1943: Casablanca conference between Churchill and Roosevelt. During the conference, Roosevelt announces the war can end only with an unconditional German surrender (World outraged! Says that Churchill and Roosevelt must be willing to negotiate with Hitler now while they're being attacked!)
- May 13, 1943: German and Italian troops surrender in North Africa. (World demands that relief groups monitor the conditions for German and Italian troops to make sure they're not being "tortured.")
- July 25/26, 1943: Mussolini arrested and the Italian Fascist government falls; Marshal Pietro Badoglio takes over and negotiates with Allies (World fears change in Italian leadership will cause "more instability in Europe.")
- July 27/28, 1943: Allied air raid causes a firestorm in Hamburg. (World condemns "Allies" raid on Hamburg. Votes 454-2 to order all allied forces to withdraw to their own countries and begin negotiating for peace.)
- Jan 6, 1944: Soviet troops advance into Poland. (World condemns Soviet aggression! Demands Soviets stop their "brutal oppression.")
- March 18, 1944: British drop 3000 tons of bombs during an air raid on Hamburg, Germany. (World outraged! Citizens of Hamburg "under siege"! World suggests putting troops inbetween combatants in effort to insure a cease fire.)
- June 6, 1944: D-Day landings. (World goes nuts! This outrageous aggression by the Allies must not stand!)
- June 13, 1944: First German V-1 rocket attack on Britain. (Other nations give mild condemnation of Nazi attack but urge rest of the world to be restrained in their response.)
- Sept 1-4, 1944: Verdun, Dieppe, Artois, Rouen, Abbeville, Antwerp and Brussels liberated by Allies. (World urges Allies to negotiate with Axis for peace! World has moment of silence for the German people who may of been harmed in attacks!)
- Dec 17, 1944: Waffen SS murder 81 U.S. POWs at Malmedy. (World chides Allies that they had better not treat their prisoners like that!)
- Dec 26, 1944: Patton relieves Bastogne. (World outraged! Patton is a "hawk". The fact that the Americans put a man like that in charge of their military shows "they're not serious about peace.")
- Feb 13/14, 1945: Dresden is destroyed by a firestorm after Allied bombing raids. (World calls for all allied leaders to be put up for war crimes trial. World expresses "shock and dismay" at Allies "complete disregard" for civilians!)
- March 6, 1945: Last German offensive of the war begins to defend oil fields in Hungary. (World comments "Who could blame them after all those allied attacks? Wouldn't you do the same thing in their place?"
- April 1, 1945: U.S. troops encircle Germans in the Ruhr(World demands US allow German troops a way out rather than attack.)
- April 16, 1945: Soviet troops begin their final attack on Berlin; Americans enter Nuremberg. (World demands that Hitler not be overthrown! He is the elected leader of the German people!)
- April 30, 1945: Adolf Hitler commits suicide. (World now very upset! Fears someone "worse than Hitler" may now take his place!)
- May 7, 1945: Unconditional surrender of all German forces to Allies. (World upset and concerned about fate of German people. Sends relief groups in to make sure Germans not mistreated!)
- June 5, 1945: Allies divide up Germany and Berlin and take over the government. (World outraged! Demands that the "occupation of Germany" end immediately)
- Aug 6, 1945: First atomic bomb dropped, on Hiroshima, Japan. (World demands Truman be tried for war crimes. Protestors and peaceniks from across the world flock to Japan to act as human shields)
- Aug 9, 1945: Second atomic bomb dropped, on Nagasaki, Japan. (World tells US that dropping atomic bombs will only "create more martyrs" and will encourage more Japanese than ever to turn against the Allies!)
- Aug 14, 1945: Japanese agree to unconditional surrender. (World sincerely hopes the citizens on the Axis nations can forgive the Allies for their uncalled for aggression, imperialism, and oppression in this war.) Thanks to this site. I lifted the dates on the timeline from them. (URL no longer works)
The United States has faced such challenges before. In early morning darkness on June 13, 1942, a German U-boat surfaced off the coast of Long Island. Four men wearing German naval uniforms piled into a rubber dinghy and headed for shore. They buried their uniforms on the beach and headed toward their objective dressed in civilian clothes. Four nights later, another German unit came ashore in northern Florida. After hitting the beach, they too discarded their uniforms.
These Nazi intelligence agents sought to sabotage targets within the United States. They were unsuccessful. Several weeks later, the Federal Bureau of Investigation (FBI) arrested them in Chicago and New York, remanding them to a U.S. army military commission for trial.
Like the "illegal combatants" held today at the U.S. naval base in Guantánamo Bay, Cuba, these Nazi saboteurs challenged the legality of the military tribunal process. Their lawyers took the case all the way to the Supreme Court, which ruled against them. In a unanimous decision delivered by Chief Justice Harlan Fiske Stone, the court determined that the German agents had violated the law of war and that a "military commission was lawfully constituted" to try them for that crime. Thus, declared the Supreme Court, "the motions for leave to file petitions for writs of habeas corpus are denied."
Fast-forward almost sixty years. Foreign agents infiltrate the United States. Again, they don civilian clothes to cloak their operations. Nineteen hijackers board aircraft in Washington and Boston, seize them, and crash them into the World Trade Center, the Pentagon, and a field in rural Pennsylvania. On September 20, 2001, President George W. Bush stood before a joint session of Congress and declared war against terrorism, "Tonight we are a country awakened to danger and called to defend freedom … Whether we bring our enemies to justice, or bring justice to our enemies, justice will be done."
The world did not have to wait long to see Bush back his rhetoric with action. Less than three weeks later, U.S. forces invaded Afghanistan to destroy the Taliban and Al-Qaeda's sanctuary. While fighting, U.S. troops encountered foreigners who had cast their lot with Osama bin Laden. The ranks of these jihadists included Western converts to Islam such as American John Walker Lind and Australian David Hicks. They also seized immigrant nationals or their children from Canada, Belgium, Denmark, France, Russia, Spain, Sweden, as well as many Muslim nations. These jihadists neither wore uniforms, nor respected the Geneva Conventions. On March 4, 2002, for example, an unmanned reconnaissance aircraft captured on film the summary execution of captured 32-year-old Navy SEAL Neil Roberts by three jihadists. Accordingly, the United States made a decision to detain these captured Al-Qaeda and Taliban fighters as illegal combatants, rather than prisoners of war.
International law has progressed in the six decades since the Supreme Court ruled against the Nazi saboteurs. But, despite the arguments made by numerous academics and human rights activists, the law does not necessarily side with the detainees. In its 2004 Rasul v. Bush decision, the U.S. Supreme Court upheld the right of the U.S. government to detain enemy combatants, even if they are American citizens. The court, however, mandated that non-American detainees could challenge their incarceration in U.S. courts.
The question of how to treat captured jihadists extends beyond Guantánamo Bay, Afghanistan, and Iraq: Israel has for years been forced to contend with Palestinian terrorist organizations that dispatch suicide bombers. Both the Kurdistan Workers Party (Partiya Karkaren Kurdistan, PKK) and various Islamist groups target Turkish civilians.
But, while the human rights community has been critical of certain United States policies for years, since September 11, the Bush administration has matched or perhaps even surpassed Israel and Turkey as a primary target of such groups as Amnesty International and Human Rights Watch.
Many nongovernmental organizations reserve venom for their condemnation of the U.S. policy of detaining captured Al-Qaeda and Taliban fighters as illegal combatants. Amnesty International labels the U.S. detention facility at Guantánamo Bay a "human rights scandal." Both Amnesty International and Human Rights Watch condemn Washington's characterization of captured jihadists as illegal combatants as a violation of the Geneva Conventions. "In its treatment of the detainees at Guantánamo," declared Human Rights Watch, the United States "has been unwilling to fully apply international humanitarian law… [and] has flouted international human rights standards." Amnesty International has adopted a similarly critical attitude. In a statement to the sixtieth session of the U.N. Human Rights Commission, Amnesty referred to "the human rights scandal of Guantánamo Bay" where "international law was flouted from the outset."
Who Do the Geneva Conventions Protect?But to what extent do the laws of armed conflict really apply in the war against terror? The answer resides primarily in the text of the 1949 Third Geneva Convention, intended to ensure humane treatment for captured legal combatants. The International Committee of the Red Cross (ICRC) declared the Geneva Conventions to be the "bedrock of principles and rules that must guide the conduct of hostilities and the treatment of persons who have fallen into the hands of a party to an armed conflict." The Red Cross has gone so far as to demand mandatory application of the Geneva Conventions "wherever a situation of violence reaches the level of an armed conflict."
Yet, treaties are more like commercial contracts in that they are traditionally viewed as binding only among their parties. Some multinational agreements have evolved into the universally applicable "customary international law." This development is enshrined in the doctrine of jus cogens, which asserts the existence of a higher law that supersedes both national law and international agreements.
In the wake of World War II, the international military tribunal at Nuremburg declared that the 1907 Hague Regulations Respecting the Laws and Customs of War on Land to be customary international law. Yet, jurists have reached no such consensus about whether the 1949 Geneva Conventions have made such a transition.
Unfortunately, the basis for the Red Cross's conclusion appears to have more to do with institutional self-aggrandizement than with international law. Many leftist academics and activists insist that the Geneva Conventions must be universally applied. Yet, that argument is undercut by those treaties' texts. The Third Geneva Convention explicitly states that parties need not apply it to all conflicts, especially when the foes are not parties, and when enemies do not abide by its terms.
No terrorist group is a party to the Geneva Conventions. They have not signed, much less ratified, those treaties. Moreover, it is evident that Hamas, Hezbollah, and members of the global Al-Qaeda network spurn both the spirit and the letter of international treaties designed to ameliorate the cruelty of war. Bloody attacks in New York, Jerusalem, Bali, Madrid, and Beslan are testament to the fact that these groups seek to kill civilians rather than to take captives. And when Islamist terrorists do seize hostages, brutality rather than protection appears to be the rule.
Iraqi insurgents beheaded 26-year-old American businessman Nicholas Berg and shot 20-year-old Keith Matthew Maupin shortly after the June 28, 2004 transfer of sovereignty. On July 22, Iraqi police found the beheaded corpse of a Bulgarian hostage. The Arabic satellite television network Al-Jazeera had confirmed on July 13 that it had a tape showing his execution. Iraqi captors have also executed Pakistanis, a Turk, and a South Korean, among others. Such mistreatment of prisoners is not a new phenomenon among terrorist groups. In the 1980s, Hezbollah captured a number of Westerners in Lebanon, among them priests, journalists, professors, a librarian, and even the president of the American University of Beirut. Hezbollah tortured and hanged U.S. Marine lieutenant colonel William Higgins. Iraqi insurgents who decapitate civilian hostages have no more international legal claim to protection than did Hezbollah kidnappers.
By violating every tenet of international law regarding treatment of prisoners, terrorist groups forfeit any entitlement to protection under the Geneva Conventions. U.S. forces would be within their legal rights to treat captured Al-Qaeda members as they did Nazi saboteurs during World War II—trial by military commission and execution by firing squad.
A similar argument applies to the Taliban. In 1956, the government of Afghanistan signed the Geneva Conventions. If the Taliban were the legitimate government of Afghanistan, then the United States would be bound to apply the Third Geneva Convention to captured Taliban fighters. Yet, only three governments—Pakistan, Saudi Arabia, and the United Arab Emirates—recognized the Taliban's claim to power. In fact, throughout this period, the rival Northern Alliance occupied Afghanistan's seat at the United Nations. A typical illustration of the U.N.'s noncommittal attitude towards the Taliban appears in U.N. Security Council Resolution 1267 which addressed the group as only an "Afghan faction." After a fistfight erupted between diplomats at the Afghan embassy in Washington, police simply expelled everyone and shuttered the building.
If international bodies did not recognize the Taliban as Afghanistan's legitimate government, then their militias could not be considered Afghanistan's regular armed forces any more than Hezbollah can be considered the army of Lebanon. Thus, Taliban fighters were not eligible for automatic Third Geneva Convention coverage. The United States is simply not obligated to extend Third Geneva Convention protections to every militia or organization that has pretensions to power.
A subsection of article four does afford automatic prisoner of war (POW) privileges to "members of regular armed forces who profess allegiance to a government or authority not recognized by the detaining power." Accordingly, even if Washington did not recognize the authority of Mullah Omar's regime, U.S. forces would still be obligated to grant POW status to the Taliban had the Taliban been a regular force. But, the Taliban was anything but a regular force. Secretary of Defense Donald Rumsfeld addressed this issue at a February 8, 2002 press conference:
The Taliban did not wear distinctive signs, insignias, symbols or uniforms … To the contrary, far from seeking to distinguish themselves from the civilian population of Afghanistan, they sought to blend in with civilian non-combatants, hiding in mosques and populated areas. They [were] not organized in military units, as such, with identifiable chains of command….
Does International Law Protect Terrorists?Some pundits and journalists condemn U.S. policy as a flagrant violation of the Geneva Conventions. Writing in the Guardian, a left-wing British broadsheet, professor of human rights law Conor Gearty proclaimed U.S. policy to be "cruel, unnecessary and as dangerous now as it was when first introduced." But Gearty's criticism is more emotional than substantive. Nothing in the conventions requires that all captives receive prisoner of war status. In fact, article four of the Third Geneva Convention stipulates a number of requirements that must be met before a captive irregular combatant can qualify as a prisoner of war.
The drafters of the 1949 Geneva Conventions sought to base the treaty on past precedent. While the 1907 Hague regulations stipulated that "the laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps," those same regulations also presented a four-part test to determine eligibility of those irregular forces for lawful combatant status. In order to be recognized as legitimate combatants, the Hague regulations required irregular units to "be commanded by a person responsible for his subordinates; to have a fixed distinctive emblem recognizable at a distance; to carry arms openly; and to conduct their operations in accordance with the laws and customs of war."
The drafters of the Third Geneva Convention adopted this four-part test as part of the criteria to determine eligibility for POW status. The delegates drafting the convention made quite clear in their debates that they did not want to confer automatic POW status on irregular forces. After much negotiation, a special committee of the conference resolved this question by crafting article 4(A) so as to differentiate between regular armed forces, constituent volunteer corps, and militias on one hand, from irregular resistance movements, on the other. The drafters agreed to apply the Hague four-part test to the latter.
Terrorists groups ranging from separatists like the PKK in Turkey, Chechen rebels in Russia, or the Pakistani-backed Harakat ul-Mujahideen in India; to Palestinian groups like Hamas, Palestinian Islamic Jihad, and the Al-Aqsa Martyrs' Brigade, to the numerous cells that comprise the Al-Qaeda network all fail the four-part test. Hijacking civilian airliners and flying them into office buildings is not "in accordance with the laws and customs of war," nor is using human bombs to blow up buses, nor is lining up and executing school teachers. On these grounds, as well, the Taliban also forfeited claim to POW status. While they did carry arms openly, they neither observed the international humanitarian law, nor wore any recognizable sign to distinguish themselves from civilians.
During the chaos of combat, confusion often reigns supreme. In battlefield confusion, captured combatants' eligibility for POW status may not be clear. During the mid-1980s, I served in Lebanon as an officer in Israel's Golani infantry brigade. We were engaged in a classic guerrilla war against Hezbollah, Amal, and Palestinian fighters who dressed in blue jeans and toted RPG-7s and AK-47s. At the slightest hint of disadvantage, these combatants would drop their weapons and melt away into the nearest Lebanese village, where they would try to blend into the local population.
The ensuing murkiness is precisely why the Third Geneva Convention demands that a "competent tribunal" determine the status of prisoners where there is doubt as to their proper status. But, while it mandates that a tribunal be held, the convention does not dictate details of the process.
In its war against terror, the U.S. military adheres to the competent tribunal requirement. No detainee ended up in Guantánamo without a series of interrogations by U.S. intelligence officials. This process was intended to determine whether a prisoner was a bona fide enemy or an innocent bystander in the wrong place at the wrong time. Questions were asked, explanations given, and evaluations made. Thus, while Australian jihadist David Hicks wound up in Guantánamo and will shortly appear before a U.S. military commission, Afghan Haji Faiz Muhammad was arrested on suspicion of affiliation with the Taliban and was later released. Faiz Muhammad had few complaints about his treatment in U.S. custody, declaring "we had enough food to eat. We could pray and wash with water five times a day."
Facilitating the Fight against Al-QaedaDespite being under no legal obligation to do so, the U.S. government treats the Guantánamo detainees in a manner consistent with the Third Geneva Convention. Why does Washington apply the letter and not the spirit of the Third Geneva Convention to the Guantánamo detainees? In principle, the Bush administration believes that members of an enemy organization that flies hijacked airliners into office buildings should not be rewarded for their crimes. The privileges of Geneva Convention status are simply that—privileges. Moreover, in practice, the ability to circumvent the Geneva Conventions gives U.S. forces a substantial advantage in prosecuting its war against Al-Qaeda and other terrorist proxies.
This would allow more intrusive questioning for captured terrorists than the Geneva Conventions permits for prisoners of war. But, that does not make U.S. actions illegal or mean that the United States is guilty of torture, as some human rights activists have claimed. The U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person."
But, it is doubtful whether sleep deprivation or sensory disorientation constitutes "severe pain or suffering." While all four Geneva Conventions contain a common article three containing an injunction against, "cruel treatment and torture," the interpretation of this provision rests upon the definition of torture for which the definitive document is the U.N. torture convention. True, Article 16 of UNCAT states, "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." But, international legal language is precise. Obligation to "undertake to prevent" is not absolute prohibition. While lesser categories of coercion should not be routine, they may be available to intelligence authorities in the event of a classic ticking bomb scenario. Can some degree of force be used, for example, on a terrorist who has knowledge of an impending attack? If depriving a captured Al-Qaeda operative of sleep could prevent a bombing such as that which struck Madrid in March 2004, would that be a greater violation of international law than allowing the slaughter of innocents to proceed?
The U.S. government is not only within its rights but is also wise to hold Al-Qaeda members incommunicado. A prisoner's military value does not solely consist of the information that a captive carries in his head. By holding Al-Qaeda members incommunicado, the U.S. military can sow the seeds of confusion and uncertainty in terrorist ranks. If bin Laden's followers do not know whether one of their comrades has been captured, then they also do not know whether any of their operations have been compromised. This is at the heart of the controversy about whether U.S. officials prematurely revealed that they had captured an Al-Qaeda computer specialist named Muhammad Naim Nur Khan who had assisted authorities in entrapping other Al-Qaeda operatives who were unaware of his capture. Yet, if the Third Geneva Convention were applied to terrorists, the treaty's strict rules on reporting the capture of enemy POWs would make such a ruse de guerre impossible and would lead to the death of more civilians.
Thus, U.S. policy in its war against terror is consistent with the Third Geneva Convention. But, human rights advocates, such as Anthony Dworkin of the Crimes of War Project, argue that U.S. detention of suspected Al-Qaeda fighters in Afghanistan or suspected insurgents in Iraq nonetheless violates the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. The terms of this convention are expansive and seek to prevent unnecessary hardship to civilians in occupied territory. Nevertheless, any argument that U.S. policy violates the Fourth Geneva Convention can only be based on a very selective reading of that treaty. After all, regardless of how ambitious the convention's terms are, they still recognize the exigencies of war and the necessity to govern captured territory. The convention, for example, allows combatants to deny protections to an occupied territory's residents if those residents threaten security. Thus, when the United States and Great Britain accepted formal occupying power status in Iraq under the terms of U.N. Security Council Resolution 1483, the international community gave them the ability to detain civilians for the overall security of coalition troops.
Israel, too, as an occupying power, has every legal right to pursue Palestinian terrorists and detain Palestinian civilians in the West Bank and Gaza. And, while these detentions cannot be open-ended, provisions to release terrorist suspects "at the earliest date consistent with the security of the State or Occupying Power" are open to interpretation. When car bombs target Iraqi civilians and politicians on the streets of Baghdad, and when suicide bombers attack Israeli buses on the streets of Jerusalem, neither U.S. nor Israeli authorities are under any obligation to release detainees. When push comes to shove, drafters of the convention recognized that the demands of legitimate military necessity always trump the extension of the treaty's privileges.
Human rights organizations and activists have also demanded that the U.S. government apply the International Covenant on Civil and Political Rights (ICCPR) to Guantánamo detainees. According to Amnesty International, U.S. detention of illegal combatants violates ICCPR clauses against arbitrary arrest or detention. This is disingenuous, however, since the ICCPR also contains a clause that permits governments to suspend its application:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States [and] Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.
On November 13, 2001, President Bush promulgated a military order entitled, "Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism." This presidential directive declared that the attacks of September 11, 2001, were "on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces." The order went on to "proclaim a national emergency" in order to prevent terrorists from inflicting "mass deaths, mass injuries, and massive destruction of property" which could "place at risk the continuity of the operations of the United States Government."
The Bush administration has carefully positioned itself within the bounds of international law. Bush's proclamation satisfied both the procedural and substantive prerequisites for suspending the arbitrary arrest clauses of the ICCPR. Human rights advocacy groups may not like it, but international law is not always consistent with their political agendas.
Do Human Rights Groups Undermine International Law?During the past century and a half, the world has witnessed almost 100 attempts to implement international agreements that would constrain the violence of war. While many, if not most, of those conventions have fallen by the wayside through general disregard, a few have served to ameliorate the suffering caused by armed conflicts. What separated relevant from irrelevant agreements was pragmatism.
The authors of the 1949 Geneva Conventions were realists who recognized that by attempting to ban everything, they would stop nothing.
Distinction between permissible and impermissible violence is the keystone of international humanitarian law. The international consensus that certain weapons and tactics should be outlawed depends upon this distinction. Chemical weapons, for example, are clearly illegal. The practical implementation of the rules depends upon soldiers' ability to discriminate between what is military and what is not. In the words of an International Committee of the Red Cross educational pamphlet, "It is a basic principle of international humanitarian law that persons fighting in armed conflict must, at all times, distinguish between civilians and combatants and between civilian objects and military objectives."
Anything that obscures the distinction between combatant and noncombatant undermines the entire foundation of international humanitarian law. Any erosion in the ability to differentiate between civilians and soldiers on the battlefield inevitably would automatically place noncombatants at greater risk. If soldiers are distinctively marked or uniformed, then troops are less likely to mistake civilians for armed combatants and fire upon them. Yet, by seeking to ban detention of illegal combatants in facilities like Guantánamo Bay, this is precisely where the recommendations of the human rights industry would lead.
Political corruption of international law is a serious issue. The U.N. Human Rights Commission, especially under the tenure of Mary Robinson, placed politics over sound legal principle. It is precisely because international jurists and human rights experts remain unaccountable and free to pursue political agendas that the U.S. government has remained vigilant.
The Protocol Additional to the Geneva Convention provides a textbook example of the dangers of such ideological pollution. Drafted at the height of the Cold War, the Soviet bloc and its Third World allies sought recognition for those who fight "against colonial domination and alien occupation and against racist regimes." But, the most perniciously politicized provisions of the protocol appear in article 44, which bestows automatic POW status on all combatants, including so-called freedom fighters, even if they violate the laws of war. Another clause would permit fighters to retain legal combatant status even if they fight in civilian clothes. Thus, in one fell swoop, the drafters struck a body blow against the entire system of international humanitarian law. Not only did the Soviet sphere try to emasculate any incentive for combatants to abide by the law of war, but they also sought to obfuscate the vital distinction between combatants and noncombatants.
While the Carter administration signed the 1977 Geneva Protocol, the Reagan administration understood the damage the treaty would do. Because of the drafters' overt political agenda, the United States declined to become party to the additional protocol. The Bush administration is fortunate that the Senate did not ratify the treaty. Had it done so, captured Al-Qaeda terrorists could shield themselves with the very same civilized guidelines that they hold in such contempt.
Many academics, pundits, and politicians have sought to transform the Geneva Conventions into something they are not. The fundamental violations of international law committed by terrorists, be they in Afghanistan, Iraq, Israel, Spain, or Russia, render them ineligible for Geneva Convention protection. To apply the Geneva Conventions universally would be the undoing of those treaties. If there is no price to pay for doffing their uniform or shuttling combatants in Red Crescent ambulances, then soldiers would figure such illegalities to be worth it. Serious violations of the laws of war would become the equivalent of jaywalking. Those advocating universal application of the Geneva Conventions to detainees in Guantánamo Bay are, in effect, encouraging future combatants to transform hospitals into ammunition depots and schools into machine gun nests. The entire regime of international humanitarian law would crumble, and the protections it provides to noncombatants in war would disappear.
The laws of war are imperfect instruments, often "more honored in the breach than the observance." Yet, despite their inherent limitations, they are humanity's best chance to restrain the savagery of war. The key to their effectiveness—and the ability of Western democracies to fight terrorism—lies in their ability to establish a clear differentiation between licit and illicit means of conducting armed conflict. To blur this distinction and to unnecessarily apply the Geneva Conventions to illegal combatants would erode that distinction and constitute not only a legal mistake, but an ethical one as well.
Ted Lapkin is the associate editor of The Review, the monthly journal of the Australia/Israel & Jewish Affairs Council.
 CNN.com, June 19, 2004, at http://www.cnn.com/2004/WORLD/meast/06/18/saudi.kidnap/.
 Ex Parte Quirin, 317 US 1 (1942), U.S. Supreme Court, at http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html.
 Address to a joint session of Congress, United States Capitol, Washington, D.C., at http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html.
 BBC.com, Mar. 6, 2002, at http://news.bbc.co.uk/1/hi/world/south_asia/1857599.stm.
 Rasul v Bush (03-334) 321 F.3d 1134, reversed and remanded.
 "Guantánamo Bay: A Human Rights Scandal," Amnesty International, at http://web.amnesty.org/pages/guantanamobay-index-eng.
 "United States: Guantánamo Two Years On," Human Rights Watch, Jan. 9, 2004, at http://www.hrw.org/english/docs/2004/01/09/usdom6917.htm.
 "The Human Rights Scandal of Guantanamo Bay," Amnesty International, AI Index: IOR 41/024/2004, no. 098, Apr. 20, 2004.
 Geneva Convention (III) Relative to the Treatment of Prisoners of War, at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68?OpenDocument.
 "International Law and the Challenge of Armed Conflicts," 28th International Conference of the Red Cross and Red Crescent, Dec. 2-6, 2003, p. 5.
 Ibid., p. 8.
 The Vienna Convention on the Law of Treaties, 1969, 1155 UNTS 331, art. 53, at http://www.un.org/law/ilc/texts/treaties.htm.
 "Judgment of the International Military Tribunal of Nuremberg," Sept. 30 and Oct. 1, 1946, p. 65.
 Yoram Dinstein, "Application of Customary International Law," in Michael Bothe, ed., National Implementation of International Humanitarian Law: Proceedings of an International Colloquium Held at Bad Homburg, June 17-19, 1988 (Leiden: Brill Academic Publishers, 1991), p. 31.
 Geneva Convention (III), art. II, para. 3.
 CNN.com, July 13, 2004, at http://www.cnn.com/2004/WORLD/meast/07/13/iraq.main/.
 Ex Parte Quirin, 317 U.S. 1 (1942).
 Text at http://www.state.gov/s/ct/rls/other/5110.htm.
 Geneva Convention (III), art. 4(A)3.
 Donald H. Rumsfeld, U.S. Department of Defense news conference, Feb. 8, 2002, at http://usinfo.org/usia/usinfo.state.gov/topical/pol/terror/02020818.htm.
 The Guardian (London), July 7, 2004.
 Final Record of the Diplomatic Conference of Geneva of 1949, Federal Political Department, Bern, p. 467.
 Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, Hague, 18 October 1907, at http://www.icrc.org/ihl.nsf/0/1d1726425f6955aec125641e0038bfd6?OpenDocument.
 Final Record of the Diplomatic Conference of Geneva of 1949, p. 422.
 Rumsfeld, news conference, Feb. 8, 2002.
 Geneva Convention (III), art. 5, para. 2.
 BBC News World Edition, Oct. 29, 2002, at http://news.bbc.co.uk/2/hi/south_asia/2371349.stm.
 Theodore B. Olsen, solicitor general of the United States, "Brief for the Respondents," Rasul v Bush (03-334) 321 F.3d 1134, reversed and remanded.
 U.S.-based Australian lawyer Richard Bourke claimed that Australian Guantánamo detainees David Hicks and Mamdouh Habib were being tortured. Radio National PM, Australian Broadcasting Corporation, Oct. 8, 2003.
 Text at http://www.unhchr.ch/html/menu3/b/h_cat39.htm.
 Geneva Conventions I, II, III, IV, art. 3-1A, at http://www.icrc.org/ihl.nsf/WebCONVFULL?OpenView.
 Associated Press, Aug. 9, 2004.
 Anthony Dworkin, "America's Interrogation Network: Rules on the Treatment of Prisoners in International Law," Crimes of War Project, at http://www.crimesofwar.org/onnews/news-prison2.html.
 Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, art. 5, para. 1, at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5?OpenDocument.
 "USA: Guantánamo Detainees—The Legal Black Hole Deepens," Amnesty International, Mar. 12, 2003.
 International Covenant on Civil and Political Rights, 1966, part 2, art. 4, at http://www.mediator.online.bg/eng/iccpr-2.htm.
 White House news release, Nov. 13, 2001, at http://www.state.gov/coalition/cr/prs/6077.htm.
 "States Parties & Signatories, by Treaties," ICRC, at http://www.icrc.org/ihl.nsf/WebNORM?OpenView.
 "International Humanitarian Law and Terrorism: Questions and Answers," ICRC, May 2004, at http://www.icrc.org/Web/eng/siteeng0.nsf/html/5YNLEV.
 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), art. 1, sec. 4, at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079?OpenDocument.
 Ibid., art. 44, sec. 2.
 Ibid., art. 44, sec. 3.
 "Letter of Transmittal from President Ronald Reagan to the United States Senate, 29 January 1989," reprinted in American Journal of International Law, vol. 81, no. 4, p. 910.
 William Shakespeare, Hamlet, act 1, scene 4.