May 29, 2004
Terrorists and the Geneva Convention
John Yoo on applying the Geneva Convention to Guantanamo detainees:
The reasons to deny Geneva status to terrorists extend beyond pure legal obligation. The primary enforcer of the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does the same with American POWs. That is impossible with al Qaeda. It has never demonstrated any desire to provide humane treatment to captured Americans. If anything, the murders of Nicholas Berg and Daniel Pearl declare al Qaeda's intentions to kill even innocent civilian prisoners. Without territory, it does not even have the resources to provide detention facilities for prisoners, even if it were interested in holding captured POWs.
It is also worth asking whether the strict limitations of Geneva make sense in a war against terrorists. Al Qaeda operates by launching surprise attacks on civilian targets with the goal of massive casualties. Our only means for preventing future attacks, which could use WMDs, is by acquiring information that allows for pre-emptive action. Once the attacks occur, as we learned on Sept. 11, it is too late. It makes little sense to deprive ourselves of an important, and legal, means to detect and prevent terrorist attacks while we are still in the middle of a fight to the death with al Qaeda. Applying different standards to al Qaeda does not abandon Geneva, but only recognizes that the U.S. faces a stateless enemy never contemplated by the Conventions.
The entire article is worth reading - as with the Patriot Act, there are many misconceptions about the Geneva Convention. The most disturbing thing about the Guantanamo detainment centers is that the war on terror is potentially a war without borders and without a forseeable end date. It is disturbing to think of detainees being held for years without a trial; without, as in World War II, the possibility of an armistice to bring a definitive end to their confinement.
But that, in a way, is a natural consequence of their status: they are not uniformed combatants of identifiable nation-states. There is no nation with whom we can engage, combat with honor on the battlefield, make peace treaties, and exchange prisoners. Al Qaeda sends suicide bombers into our cities to kill innocent civilians rather than making war upon other soldiers. They do not abide by the Conventions Al Gore wants applied to them: Conventions that, if we were to apply tomorrow, their past conduct would exempt them from under the Geneva rules. Al Qaeda doesn't play by the rules.
Still, rules aren't everything. There are also moral and ethical obligations. We are obligated to treat the Guantanamo detainees humanely. There needs to be enough oversight to ensure that we are doing so, but not so much that security is compromised. And the troubling question remains: how much time and effort are we obligated to expend in trials and habeus corpus petitions during wartime? Theoretically, were sufficient legal protections extended to them, with very little effort the detainees could flood the system with petitions, appeals, and other legal matters. How much is enough when we are at war?
This is a difficult question. On the one hand, we do not wish to be an unjust nation. On the other, these people have taken up arms against us in a manner proscribed by the laws of war - a fact that critics like Mr. Gore tend to gloss over. If we let them go, they will undoubtedly do so again. Undoubtedly, there are some comparatively harmless people caught up in the madness, who could be safely let go - detainees who, after all this time, might go peacefully back to their homes. But how do we determine which ones to let go, and how much effort and time are we obligated to spend finding out?
May 29, 2004 at 09:46 AM | Permalink
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An interesting little tidbit about Gitmo: There was whispers about Al-Queda and the Cuban military trying to storm Gitmo and releasing or killing the detainees.
I'll find the link Tuesday.
Posted by: Purple Raider at May 29, 2004 1:45:48 PM
I heard something like that too, but can't remember where. I'd be interested, Mr. Raider.
Posted by: Cassandra at May 29, 2004 5:56:55 PM