thedrifter
07-13-06, 10:00 AM
Osama in Genevaland
Terrorists are now getting lawful-combatant legitimacy.
Thursday, July 13, 2006 12:01 a.m. EDT
The Geneva Conventions of 1949 govern the treatment of lawful combatants and civilians during wartime. But now a new Pentagon memorandum concludes that Common Article 3 of the Conventions also governs the treatment of unlawful combatants: pirates, drug mafias and especially terrorists. So, five years after 9/11, the U.S. is about to give to people who ram commercial jets into buildings many of the same legal privileges and immunities as the average GI.
How did we get to this Osama in Genevaland world? Credit belongs to last week's Hamdan Supreme Court decision, and to Pentagon officials who have overinterpreted the meaning of that decision. Deputy Secretary of Defense Gordon England signed the memo, and our sources tell us it was issued without any wide deliberation with, or even particular awareness by, the White House Counsel's office or the Justice Department. (A White House spokesman didn't respond to our query.)
Mr. England's memo overturns a 2002 Justice Department memo that ruled explicitly that the Geneva Conventions did not apply to members of al Qaeda or the Taliban, a policy change the White House confirmed late on Tuesday. For an Administration that has fought so hard, and in our view rightly, to protect its executive powers, this is being heralded as an embarrassing reversal. It also has the smell of a bureaucratic fiasco, since we can't recall another situation in which Presidential power was so freely handed away.
Some in the Bush Administration claim the memo does nothing more than require the Pentagon to ensure compliance with Hamdan v. Rumsfeld, and that troops in the field had to be warned. But Hamdan was a limited and ambiguous ruling: limited, because it dealt solely with the question of military commissions that put terrorists on trial; ambiguous, because Justice Anthony Kennedy's opinion did not fully subscribe to the four-Justice majority's reasoning.
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.
Already, in the wake of this reversal, the Bush Administration's critics are talking about the "illegality" of its previous failure to abide by Geneva rules. We'll predict that it won't be very long until some European magistrate indicts Donald Rumsfeld or National Security Adviser Stephen Hadley or some other U.S. official for "war crimes" for this failure. The Pentagon's new memo won't be much of a defense.
Believe it or not, Congress can still fix this royal mess by following the Supreme Court's Hamdan order to write a new set of procedures and rules for handling unlawful combatants. And Congress can and should say that it is these new rules, not Geneva Common Article 3, that is the controlling law in America. The Pentagon may have surrendered prematurely to legal generals, but that doesn't mean the American people want to.
Ellie
Terrorists are now getting lawful-combatant legitimacy.
Thursday, July 13, 2006 12:01 a.m. EDT
The Geneva Conventions of 1949 govern the treatment of lawful combatants and civilians during wartime. But now a new Pentagon memorandum concludes that Common Article 3 of the Conventions also governs the treatment of unlawful combatants: pirates, drug mafias and especially terrorists. So, five years after 9/11, the U.S. is about to give to people who ram commercial jets into buildings many of the same legal privileges and immunities as the average GI.
How did we get to this Osama in Genevaland world? Credit belongs to last week's Hamdan Supreme Court decision, and to Pentagon officials who have overinterpreted the meaning of that decision. Deputy Secretary of Defense Gordon England signed the memo, and our sources tell us it was issued without any wide deliberation with, or even particular awareness by, the White House Counsel's office or the Justice Department. (A White House spokesman didn't respond to our query.)
Mr. England's memo overturns a 2002 Justice Department memo that ruled explicitly that the Geneva Conventions did not apply to members of al Qaeda or the Taliban, a policy change the White House confirmed late on Tuesday. For an Administration that has fought so hard, and in our view rightly, to protect its executive powers, this is being heralded as an embarrassing reversal. It also has the smell of a bureaucratic fiasco, since we can't recall another situation in which Presidential power was so freely handed away.
Some in the Bush Administration claim the memo does nothing more than require the Pentagon to ensure compliance with Hamdan v. Rumsfeld, and that troops in the field had to be warned. But Hamdan was a limited and ambiguous ruling: limited, because it dealt solely with the question of military commissions that put terrorists on trial; ambiguous, because Justice Anthony Kennedy's opinion did not fully subscribe to the four-Justice majority's reasoning.
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.
Already, in the wake of this reversal, the Bush Administration's critics are talking about the "illegality" of its previous failure to abide by Geneva rules. We'll predict that it won't be very long until some European magistrate indicts Donald Rumsfeld or National Security Adviser Stephen Hadley or some other U.S. official for "war crimes" for this failure. The Pentagon's new memo won't be much of a defense.
Believe it or not, Congress can still fix this royal mess by following the Supreme Court's Hamdan order to write a new set of procedures and rules for handling unlawful combatants. And Congress can and should say that it is these new rules, not Geneva Common Article 3, that is the controlling law in America. The Pentagon may have surrendered prematurely to legal generals, but that doesn't mean the American people want to.
Ellie