In a landmark speech Wednesday, President Bush announced that all captured terrorists will receive the protections of Common Article Three of the Geneva Conventions. This concession was compelled by the recent Supreme Court decision in Hamdan v. Rumsfield, where a narrow majority of the Court substituted its preferred detainee treatment policy for that of the president. Though bowing to the Supreme Court’s ukase, Bush acidly observed that this decision has “impaired our ability to prosecute terrorists.” This was too kind. The Court’s ruling in Hamdan established a deeply flawed framework for dealing with terrorists motivated by an implacable religious desire to destroy us.
Those who favor applying the Geneva Conventions to militant Islamists rely on several dubious assumptions. First, they believe this will redound to our own troops’ benefit if they are captured. Second, that Common Article 3 of the Geneva Conventions represents a minimum standard of decency that must be applied to all detainees, without exception. Both arguments reveal a woeful and dangerous ignorance of the text, history, and purpose of the Geneva Conventions.
Neal Katyal, who represented Osama bin Laden’s bodyguard Salim Hamdan before the Supreme Court, recently told the Legal Times that for every one piece of hate mail he has received, “there are 10 supportive e-mails from [American] troops, saying, ‘Thank you for defending me and my cause, because if I’m caught in some other country, what’s going to save me from a beheading, except for the fact that the U.S. plays by rules?’”
This is nonsense. When militant Islamists slit the throat of Wall Street Journal reporter Daniel Pearl, there was not a single al Qaeda member in Guantanamo Bay and the only torture in the Abu Ghraib prison was by order of Saddam Hussein. What capacity for self-delusion is required to believe that granting captured terrorists Common Article Three protections will suddenly reduce their depravity? For Katyal to claim that militant Islamists are even aware of the Great Writ of habeas corpus, let alone Justice Stevens’s ipse dixit in Hamdan, is more than harmless self-aggrandizement; it is dangerous folly.
The most obvious drawback of mandating that Common Article Three applies to all captured terrorists is that certain Geneva Convention rights are so nebulous as to be practically meaningless. For example, Common Article Three forbids, “outrages upon personal dignity, in particular humiliating and degrading treatment.” Unsurprisingly, there is no consensus regarding what these words mean. Indeed, there has been considerable debate over whether slapping a terrorist’s belly to elicit information is an outrage on his dignity or even tantamount to torture. The vagueness of Common Article Three combined with the Supreme Court’s newfound willingness to second-guess our government’s treatment of detainees during times of war leaves U.S. soldiers and interrogators with little practical guidance on which to rely.
When dealing with traditional prisoners of war, as the United States did in World War II, Korea, and even Vietnam, it was reasonable to err on the side of leniency and treat detainees with deference and respect. Terrorists, by contrast, present a much greater threat to themselves, their guards, and all Western nations should they escape or be released. Moreover, the diffuse and clandestine nature of their operations also mean that a much greater proportion of the intelligence on which we rely to thwart future attacks must come from captured operatives.
More importantly, the Geneva Conventions did not anticipate the threat posed by today’s militant Islamists. The Geneva Conventions were drafted by civilized countries for the treatment of civilized soldiers. The terrorists we fight today, by contrast, are not dutiful conscripts or professional soldiers; they are would-be martyrs motivated by a fanatical and uncompromising ideology. Granting them the panoply of rights under the Geneva Conventions is inconsistent with the history and underlying assumptions of those treaties.
The drafters of the Geneva Conventions understood that the laws of war are quickly abandoned by a desperate army. To minimize this danger, they allowed for the prosecution of combatants for violations of the laws of war — a sanction, incidentally, made more difficult by the Supreme Court’s rejection of President Bush’s proposed military commissions. They also enshrined a principle of reciprocity: the prospect of harsh punishment if captured acts as a deterrent against savage conduct on the battlefield, just as the possibility of favorable prisoner of war status is an incentive to behave honorably.
The Geneva Conventions are by no means anachronistic; they remain the proper legal framework for waging a conventional war against a regularly constituted army. But applying the strict letter of the Geneva Conventions to Islamist militants is like applying the Queensbury Rules to a donnybrook. When terrorists have shown no interest in abiding by the Geneva Conventions, it is naïve to think that we can shame them into doing so by treating them as though they have. The best way for the United States to honor the Geneva Conventions is to enforce the principle of reciprocity and deny Geneva protections to those who scorn them.
– Alykhan Velshi is a lawyer and manager of research at the Foundation for the Defense of Democracies. Howard Anglin is an appellate lawyer in Washington, D.C. The views expressed in this article do not represent the views of their employers.