Between a Rock and a Hard Place
What to do with prisoners like these?

By Victor Davis Hanson, author most recently of Carnage and Culture: Landmark Battles in the Rise of Western Power.
January 28, 2002 8:20 a.m.

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.