LAST WEEK, both houses of Congress approved a bill — the Military Commissions Act — that would permit the indefinite, extrajudicial incarceration
of terrorist suspects and their interrogation using torture in all but name. Does that sound shocking? What's really shocking is that this was a compromise measure.
When President Bush signs this bill into law, a category of detainees will come into existence: "unlawful enemy combatants" who, regardless of their nationality, will be liable to summary arrest.
Those detained will not have the right to challenge their imprisonment by filing an application for a writ of habeas corpus. When — or rather if — they are tried, it will be by military tribunals. Classified evidence may be withheld from the accused if the tribunal judges see fit.
My old friend Andrew Sullivan — who used to think he was a conservative
until President Bush came along — calls it a bill to "legalize tyranny."
At the very least, it has the potential to extend the scope of American
martial law far beyond the cellblocks of Guantanamo Bay.
Leave aside for now the question of habeas corpus; after all, prisoners of
war have traditionally been denied this ancient protection. Much more sinister
is Section 8 ("Implementation of Treaty Obligations"), under which "the
president has the authority … to interpret the meaning and application of the
Geneva Conventions and to promulgate … administrative regulations for violations
of treaty obligations which are not grave breaches of the Geneva Conventions."
To see what this means, you need to know what the "grave breaches" are.
According to Geneva Convention III, Article 130, they include "willful killing,
torture or inhuman treatment, including biological experiments" and "willfully
causing great suffering or serious injury to body or health."
Insidiously, therefore, the Military Commissions Act empowers the president
to authorize all lesser forms of physical and mental intimidation of prisoners.
Suffering and injury are fine, in other words, as long as they aren't "great" or
It is easy enough to understand why most members of Congress assented to
this. Five years after 9/11, Americans remain intensely hostile toward anyone
who might even be suspected of involvement in terrorism. Not for the first time,
war fever is encouraging Americans to set aside the fundamental principles of
individual liberty on which the United States was founded. Predictably,
Democrats who opposed the bill were accused by Republicans of "coddling"
terrorists — a line of attack that Karl Rove hopes will win November's midterm
History, however, provides a powerful counter-argument. It is that any
dilution of the Geneva Convention could end up having the very reverse effect of
what the administration intends. Far from protecting Americans from terror, it
could end up exposing them to it.
THE FIRST Geneva Convention governing the humane treatment of prisoners of
war was adopted in 1929. It is not too much to say that it saved the lives of
millions. In World War II, about 96 million people served in the armed forces of
all the belligerent states, of whom more than a third spent at least some time
in enemy hands. The majority of these were Axis soldiers who became prisoners
when Germany and Japan surrendered. Luckily for them, the Allies upheld the
Geneva Convention, despite the fact that the Axis powers had systematically
failed to do so.
Official Japanese policy encouraged brutality toward prisoners of war by
applying the Geneva Convention only mutatis mutandis (literally, "with those
things having been changed which need to be changed"), which the Japanese
translated as "with any necessary amendments."
The amendments in question amounted to this: Enemy prisoners had so
disgraced themselves by laying down their arms that their lives were forfeit.
Indeed, some Allied prisoners were made to wear armbands bearing the inscription
"One who has been captured in battle and is to be beheaded or castrated at the
will of the emperor." Physical assaults were a daily occurrence in some Japanese
POW camps. Executions without due process were frequent. Thousands of American prisoners died during the infamous Bataan Death March in 1942.
Elsewhere, British POWs were used as slave labor, most famously on the
Burma-Thailand railway line. Attempting to escape was treated by the Japanese as a capital offense, though the majority of prisoners who died were in fact
victims of malnutrition and disease exacerbated by physical overwork and abuse.
In all, 42% of Americans taken prisoner by the Japanese did not survive. Such
were the consequences of "amending" the Geneva Convention.
Red-state Republicans may still shrug their shoulders. After all, George W.
Bush is no Tojo. Well, maybe not. But even if you don't see any resemblance
between Bush's "administrative regulations" and Imperial Japan's "necessary
amendments" of the Geneva Convention, consider this purely practical argument:
As Winston Churchill insisted throughout the war, treating POWs well is wise, if
only to increase the chances that your own men will be well treated if they too
are captured. Even in World War II, there was in fact a high degree of
reciprocity. The British treated Germans POWs well and were well treated by the
Germans in return; the Germans treated Russian POWs abysmally and got their
bloody deserts when the tables were turned.
Few, if any, American soldiers currently find themselves in enemy hands.
But in the long war on which Bush has embarked, that may not always be the case.
The bottom line about mistreating captive foes is simple: It is that what goes
around comes around. And you don't have to be a closet liberal to understand
Tuesday, October 03, 2006
Bush is no Churchill when it comes to prisoners
Here is Niall Ferguson from yesterday’s Los Angeles Times on why Winston Churchill opposed torture of prisoners.