Welcome To “Genevaland”
At a minimum, the Bush Administration should have thought carefully about Hamdan and interpreted it as narrowly as possible. Instead, Mr. England’s memo interprets the ruling in the broadest way possible, applying the standards of Common Article 3 to all “DoD orders, policies, directives, execute orders and doctrine.” As a matter of law, every other government agency, including the CIA, will now have to follow the Pentagon’s line.
In practice, this means that a captured terrorist such as September 11 mastermind Khalid Sheikh Mohammed is now protected by Common Article 3. People often associate the Geneva Conventions with guarantees against torture, protection for the wounded and the sick, and other “bare minimum” humanitarian standards. But Common Article 3 goes considerably further, forbidding, for example, “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
What exactly constitutes personal dignity and outrages upon it? Who knows, though we bet the ACLU will be more than happy to supply some answers. Our guess is that the concept can be read so expansively as to forbid the U.S. from so much as shouting at captured al Qaeda suspects, never mind “waterboarding” them, as was reportedly done to break KSM. In a war in which actionable intelligence acquired from captives is crucial to uncovering terrorist plots and preventing future attacks, it’s hard to imagine a greater self-inflicted setback to counterterror efforts.
The setback is also political, and by that we don’t mean partisan. We mean in the larger sense of the Bush Administration’s moral and legal authority for its anti-terror cause. By identifying terrorists as illegal combatants and treating them accordingly, the Administration was attempting to remedy the defects of the pre-September 11 legal architecture for handling terrorists. The pre-9/11 view divided the world between combatants and noncombatants, and viewed terrorism as just another crime to be dealt with through the existing criminal-justice system.
We have learned the hard way that that approach doesn’t work. The criminal-justice system takes too long and is complicated by the government’s need to keep military secrets. Moreover, according such rights to terrorists who murder women and children gives them moral legitimacy that will make winning this war that much harder. It elevates terrorists nearly to the level of GIs who obey formal rules of engagement and who can be, and as we’ve seen often are, punished severely for harming innocents.
What the world needs is a new legal framework for distinguishing between legal and illegal combatants, but instead we are now heading toward the European model where terrorism is seen as just another fact of life and not a unique evil or grave threat. In Germany, the High Court earlier this year released from custody Mounir El Motassedeq, an accomplice of 9/11 ringleader Mohamed Atta, on a technicality. Germany may be able to afford such legal exquisiteness; as the main terror target, the U.S. and its citizens cannot.
In this editorial, The Wall Street Journal is making an important distinction–one which I have raised before–between treating suspected terrorists humanely and actually extending to them the protections of Geneva to which they themselves do not abide. It’s a distinction that has been thrown under the bus of partisan rhetoric by some that are too busy being martyrs to actually think about the complexities of this issue. The only question now is how is America going to pay the price for this “moral victory.”