War Crimes and the Geneva Conventions Silliness in the Washington Post
Of course I'm not *shocked* that the Washington Post lets these two get away with publicizing an editorial called War Crimes and the White House: The Dishonor in a Tortured New 'Interpretation' of the Geneva Conventions. What I am shocked about is just how dumb the the editorial is.First, P.X. Kelley and Robert F. Turner pull out the street creds. The first sentence:
One of us was appointed commandant of the Marine Corps by President Ronald Reagan; the other served as a lawyer in the Reagan White House and has vigorously defended the constitutionality of warrantless National Security Agency wiretaps, presidential signing statements and many other controversial aspects of the war on terrorism.So, take their argument seriously! The pair then go on to quote the Hamdi case, which declares all detainees captured in the war on terrorism are protected by Common Article 3 of the 1949 Geneva Conventions. They then go on to a laborious explanation of how it's not just torture that the Geneva Conventions prohibit, but also:
"outrages upon personal dignity, in particular, humiliating and degrading treatment."Which is true inasmuch as the Geneva Conventions apply to prisoners of war. Then they go on to explain that an executive order prohibiting torture, but which might allow for humiliating or degrading treatment, is Presidential acquiescence to the breaking of the Geneva Conventions. And then warn:
that violations of Common Article 3 are "war crimes" for which everyone involved -- potentially up to and including the president of the United States -- may be tried in any of the other 193 countries that are parties to the conventions.Be afraid Mr. President. Be very afraid! Of course, it's not until far down into the editorial that the pair admit the obvious, which completely destroys their own argument:
Yet we did not find it necessary to compromise our honor or abandon our commitment to the rule of law to defeat Nazi Germany or imperial Japan, or to resist communist aggression in Indochina. On the contrary, in Vietnam -- where we both proudly served twice -- America voluntarily extended the protections of the full Geneva Convention on prisoners of war to Viet Cong guerrillas who, like al-Qaeda, did not even arguably qualify for such protections.They admit that al Qaeda members do not qualify for Geneva Convention protection. More than that, they say that there's not even an argument about it. So, since they admit that the Conventions don't apply to al Qaeda, how exactly is he going to be prosecuted for the "war crime" of humiliating them?
Parenthetically, giving the Viet Cong Geneva Convention protections sure worked out, right?Why don't the Conventions apply to the likes of al Qaeda or other jihadi groups? Because the Geneva Conventions only apply to state and non-state actors who either wear a uniform or who can clearly be identified through other means as members of an armed group. Insurgents who attempt to blend in with local populations are intentionally excluded from the Conventions. And Kelley and Turner know it. So, why extend Geneva Convention protection to al Qaeda, even though they admit that al Qaeda members don't even qualify for such protection?
The Geneva Conventions provide important protections to our own military forces when we send them into harm's way. Our troops deserve those protections, and we betray their interests when we gratuitously "interpret" key provisions of the conventions in a manner likely to undermine their effectiveness.So, let me get the logic straight: if we treat al Qaeda prisoners with "dignity", then they will do the same to any prisoners they capture? The Geneva Conventions never were intended to apply to groups like al Qaeda. The Conventions are an inducement for armed combatants to follow some basic notions of just war: try not to kill civilians and don't harm honorable enemies who have laid down their arms. Terrorists like al Qaeda members are excluded to warn those who do not follow the rules of war that they should not expect to be treated well by their captors. The message that Kelley and Turner wish to convey is exactly opposite that of the Conventions: no matter how you act in war, you will be treated well. I will agree with Kelley and Turner on this one thing:
The Geneva Conventions provide important protections to our own military forces when we send them into harm's way. Our troops deserve those protectionsOf course our troops deserve those protections, because our troops follow the rules of war as established in the Geneva Conventions. Members of al Qaeda and other jihadi organizations do not. If anything is outrageous, it is not how we mistreat terrorists but that we treat them so well. FDR knew how to treat foreign agents who were out of uniform and who meant to do harm to the homeland-- he executed them.