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 either
the Taliban government nor al Qaeda signed the Geneva Convention,
which, like the U.N. proclamations on human rights, is solely a
product of the Western liberal tradition of jurisprudence. They
should have read Thucydides's warning that in times of unrest groups
typically ignore or trample on the very laws that might protect
them later on in their own hour of crisis. While for purposes of
public relations and in accord with American values we must continue
to treat the terrorists humanely, we are under no obligation to
follow to the letter international accords concerning prisoners
of war.
Quite simply
the Convention reads: "Nationals of a state which is not bound
by the Convention are not protected by it." And even if the
Taliban and al Qaeda terrorists were signatories to the Convention,
as irregulars they still do not qualify as protected soldiers in
the field. Did the terrorists ever "have a fixed distinctive
sign recognizable at a distance"? And if not, are they really
"carrying arms openly" or "conducting their operations
in accordance with the laws and customs of war." Even if they
were ad hoc irregulars ("without having had time to
form themselves into regular armed units"), they surely do
not always "respect the laws and customs of war."
Even the most
humane societies cannot afford to treat agents of terror as regular,
uniformed soldiers. The United States dispatched several Nazi saboteurs
in the United States. During the Battle of the Bulge, Americans
summarily shot any Nazis in American uniforms bent on killing officers
and disrupting transportation and communication. If we remember
that the Taliban sanctioned the al Qaeda bases, and that such operatives
— according to their own literature and videos — trained
bombers and killers to hide their identities while abroad planning
mayhem against targeted countries, then de facto, all
of al Qaeda and the Taliban are terrorists. They could easily be
treated as harshly as saboteurs were in the past.
We have the
legal right, then, to execute or imprison them indefinitely —
or to use stern methods of interrogation. But we probably shall
not. "Asking" them to provide some information beyond
their name, rank, and serial number is about as far as we will probably
go. And we cannot win here either. If we use uncompromising measures
to extract data, we will probably find out little: after so many
weeks since their capture, most of what they will tell us will be
stale, hard to authenticate, and contradictory. Yet, if we agree
with Mr. Powell, and respect their rights to privacy, in theory
we just might miss out on the type of random confessions that saved
lives in the Philippines, Malaysia, and Singapore. The columnists
who now deplore pictures of kneeling terrorists in jumpsuits will
be the first to decry government "laxity," "incompetence,"
and "bureaucratic negligence," should any of these detainees
blow up the Library of Congress or the National Cathedral in the
next few years.
Europe's criticism
is to be expected, but nevertheless ironic — given its own
recent checkered history of treating dangerous detainees. The French
were not humane with their prisoners in Algeria. The British meted
out to IRA terrorists far worse than what the al Qaeda terrorists
are currently experiencing in Cuba; the same holds true of Basque
separatists in Spanish jails. Eastern European prisons during the
Cold War were comparable to those in the Soviet Union. In the Balkans,
Muslim prisoners were herded up to be butchered a few hours away
from the major European capitals without much real effort on the
part of the EU to stop the bloodlust. The truth is that there is
no Bill of Rights — much less anything like one's Miranda rights
— in Europe, and such distinctively American judicial freedoms
have had a way of filtering down to places like Guantanamo even
in situations where they are not legally requisite.
While we must
treat all detainees humanely, we should not expect that such benevolence
in any way will ensure that al Qaeda will deal commensurately should
they capture Americans in the future. The Taliban and their terrorist
guests tortured and hung any suspected pro-American Afghanis whom
they got their hands on. In theory, reciprocity of treatment should
prevail. After all, on the Western front in World Wars I and II,
Germany and the Allies more or less treated prisoners fairly to
ensure commensurate conditions for their own interned in enemy hands.
In the negative sense, on the Eastern Front, the Nazis and Soviets
slaughtered and starved prisoners on a fairly similar basis.
But we are
in an asymmetrical battle against warlords who could care less how
their own captured combatants are treated — and history offers
little solace for us in our dilemma. The Japanese were atrocious
captors — despite the humane conditions accorded Japanese prisoners
held in the United States. Treating North Koreans and North Vietnamese
in decent fashion did not ensure that our own would be so well accorded.
Downed American flyers in Iraq were beaten and used as human shields
for potential targets — even as thousands of Iraqi prisoners
were fed and clothed by us. Most thuggish regimes accept that democracies
will be charitable to their own captured, regardless of their record
of savagery. Indeed, the biggest problem in holding captured Russian,
Korean, and Chinese communists was that often they did not wish
to be repatriated back to their home countries, whom they feared
more than us.
So those captured
from illegitimate and nebulous forces also have little value as
bargaining chips because their own leaders value human life hardly
at all. Occasionally a few top lieutenants with tribal ties to the
elite might warrant interest, but usually a Stalin, Ho, Saddam,
or bin Laden could not care less about the fate of his minions.
Bin Laden's past chuckles on tape about his naive terrorist henchmen
boarding planes on their way to Paradise suggest as much.
Usually prisoner
exchanges between democracies and the "other" are horrendously
one-sided: dozens of Palestinians for a single Israeli; hundreds
of Viet Cong for a few Americans; thousands of Koreans for a hundred
Americans; the entire Iraqi army for a handful of allied flyers.
We must interrogate the detainees, but again with the acknowledgment
that they have little, if any, reciprocal value should our own become
prisoners in the weeks ahead. The idea that some day terrorist captors
will treat an American prisoner kindly because his brethren once
only had to give their name, rank, and serial number in Cuba is
lunatic.
Age-old problems
also arise about possible release of captives when the nature and
duration of war itself is uncertain. Multi-year, undeclared wars
are different from clearly demarcated conventional conflicts between
recognized states. What are captors to do with hordes of detainees
whom they increasingly do not want, cannot handle, and yet cannot
release without apprehension?
The solutions
from the past, of course, are mostly out of the picture. The Athenians
cut off the right thumbs — a barbaric practice condemned by
all in the Greek world — of captured sailors to ensure that
they could never row against Athens again. After Lepanto, victorious
Italians and Spanish harpooned Ottomans in hopes that the Sultan
could not reach the Italian coast with a refitted fleet in the ensuing
weeks. Branding those in Cuba with "USA" on their foreheads
— in the manner of the Athenian treatment toward captured Samians
— belongs to the barbarity of past millennia. History's brutal
answers to the vexing problem of releasing prisoners of war before
hostilities are ended — execution, mutilation, indeterminate
imprisonment, enslavement, branding, ransoming — reveal the
dilemma that arises when there is no guarantee that captives will
not reappear instantly as combatants.
Nor can we
trust freed terrorists to sign parole papers like Southerners captured
at Vicksburg or Northerners after Bull Run. Barring the use of some
miniature computer chip implanted in the calves or shoulders of
the terrorists, all we can hope for is to identify, photograph,
and catalogue those more "innocent" miscreants without
direct ties to previous murders and bombings. Eventually we will
have to send many of them home to either jails or, more likely,
the heroic applause of the Arab street — all in the hopes that
in a few years we are not sitting across from any of them while
flying at 30,000 feet en route above the Grand Canyon.
There is no
good solution to the growing mess in Cuba. Our captives are too
primeval and we, their captors, are too civilized — and both
are on the world's stage of instant communications, in which after
a few weeks, thousands who were vaporized at work lose airtime to
a few terrorists in tropical captivity. It is our present fate to
accept that a two-kiloton explosion in Manhattan in a few months
gives way in the popular imagination to prayer mats and Fruit Loops
in Guantanamo Bay. What we should do to these killers, we cannot.
And what we will do, will be seen as barbaric — even as we
realize that it is too little to ensure either justice for their
past sins or protection from their future attacks against us.
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