Critics of the current administration have faulted the President for disregarding international law as it pertains to the treatment of captured enemy combatants and terrorists, but Clifford May, citing a National Review article by Andrew McCarthy (only available by subscription), argues that the Geneva Conventions were designed for a world that no longer exists. He maintains that modern terrorism makes the Geneva accords, at least as they are applied to modern terrorists, obsolete and irrelevant.
Here's the heart of May's column:
Andrew C. McCarthy - director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies - writes what may be the definitive rebuttal of the now dominant narrative that the Bush administration violated international law and fundamental morality by not giving captured terrorists "the privileges the Geneva Conventions grant to honorable combatants."
He notes that what we short-handedly call the war on terrorism is complicated by the fact that the existing system of laws and treaties were designed with conventional conflicts in mind. "The animating idea of the Geneva Conventions, adopted in 1949 after the carnage of two world wars, was to civilize warfare," he writes. "Belligerents opted into the system by conduct" - that is, by obeying the laws of armed conflict.
But members of such groups as al-Qaeda (including al-Qaeda in Iraq), Lashkar-e-Taiba, the Taliban, Hezbollah, and Hamas routinely and egregiously violate the laws of war - for example, by targeting civilians, hiding among civilians, not wearing uniforms, and not carrying their weapons openly.
McCarthy, a former U.S. government terrorist prosecutor, also notes that before Bush became president, both the Washington Post and the New York Times editorialized against giving such "unlawful combatants" the status of POWs. Both approved President Ronald Reagan's 1987 decision not to sign "Protocol I," an addendum to Geneva specifically designed to extend to terrorists the Conventions' prohibition against coercive interrogations.
The Geneva Conventions are treaties, and treaties apply only to states that have signed them. You can't conclude they were meant to benefit non-state terrorist organizations unless you also believe there is no meaningful distinction between al-Qaeda and the French Resistance (as some critics of the Bush administration do indeed insist).
McCarthy elaborates: "[T]errorists cannot opt into Geneva. They fall outside because, by definition, they reject its minimum humanitarian requirements. Affording them Geneva's benefits rewards their savagery and undermines the system's civilizing objectives."
It is absurd to suggest that America can prevail in a war against terrorists by prosecuting them after they carry out attacks in which they intend to die. A rational government, conscious of its duty to protect the population, must attempt to prevent and pre-empt terrorists from completing their missions. That requires gathering solid, actionable intelligence.
"The best source of such intelligence is the interrogation of captured terrorists," McCarthy writes. "Applying the steep Geneva interrogation restrictions reserved for honorable combatants would be suicidal: Life-saving intelligence would be lost and no reciprocal benefit achieved for captured Americans, whom terrorists would torture and kill in any event."
What I find most regrettable about much of the criticism of the Bush administration's handling of detainees is the self-righteous denunciations of the use of waterboarding, which causes no lasting harm to the subject, in order to extract information that might save American lives. I think every person who criticizes even the limited use of what are euphemistically referred to as "harsh measures" ought to be asked whether they would prohibit waterboarding if they had a son or daughter whose life would be saved if the technique were employed but lost if it weren't. I wonder how many of the critics would still maintain that it's use is "deeply immoral." How many of them would be willing to tell their loved ones that they would rather they be dead than that their lives be saved by the use of technique from which a terrorist would walk away none the worse for the experience?
RLC
