Meanwhile, some time in the next few days, the Supreme Court will decide the most important case of its term, Hamdan v. Rumsfeld. Salim Ahmed Hamdan, the personal driver and confidant of Osama bin Laden, claims his “rights” would be infringed if he is subjected to a military commission of the type President Bush authorized in late 2001 — the type that has from a time out of memory been imposed on those who violate the laws of war. Hamdan demands, instead, a court martial, with all the elevated protections afforded to our own forces by our own military — if not a full-blown civilian trial, before a federal judge, with all the protections afforded by our Constitution to American citizens accused of crimes.
Of course, a Yemeni national captured in Afghanistan whose only connection to the United States is to wage war against her has no rights under our Constitution. The entitlements Hamdan insists he rates can only come from international law: specifically, the Third Geneva Convention of 1949, relative to the treatment of prisoners of war.
Except there’s a problem … actually several problems. Al Qaeda, being an atrocious international terrorist network rather than a nation, is not a “high contracting party” to the Convention. It has no general or presumed claim on the treaty’s protections.
This does not necessarily mean it could never claim Geneva rights. But it does mean those rights must be earned. Geneva’s Golden Rule is earned reciprocity. Article 2 of the Convention makes it very clear: a non-party may earn the privileges and immunities of the treaty if it “accepts and applies the provisions thereof.”
So exactly how are Islamic terrorists faring on Geneva’s “Do unto others” scorecard?
Well, the treaty’s provisions call for protecting civilians and civilian infrastructure. Al Qaeda targets civilians for mass murder and intentionally destroys civilian infrastructure.
The provisions call for membership in a regular military force which carries its arms openly. Al Qaeda’s idea of a weapon in open view is a hijacked jumbo jet in the seconds before it crashes into a building. Otherwise, it favors roadside bombs or high explosives concealed in vans burrowed in underground garages beneath bustling civilian skyscrapers.
The provisions call for wearing uniforms in order to distinguish members as authentic soldiers. Al Qaeda’s jihadists dress and conduct themselves ostensibly as civilians — the better to hide from real armies and lull actual civilians to their deaths.
The provisions call for treating captured enemy soldiers with the dignity and respect accorded to honorable prisoners of war: accounting for them, keeping them safe, allowing the International Committee of the Red Cross access to ensure their proper treatment.
Al Qaeda tortures and slaughters them.
When it comes to the prisoners they capture, al Qaeda doesn’t much care about the Geneva Conventions, the approbation of the ICRC, or Kofi Annan’s latest grandiloquence on the post-sovereign alchemy of international law.
All it cares about is “the verdict of the Islamic court.” It was that verdict, and no other, that the Mujahedeen Shura Council — Iraq’s thugs-in-chief — announced had been “carried out” against our fallen heroes by their new Zarqawi, Abu Hamza al-Muhajer. Needless to say, the deed was done “with God Almighty’s blessing.”
Which is to say, al Qaeda tortured and slaughtered them.
When the Supreme Court heard arguments in Hamdan three months ago, much of the internationalist hyperventilating was over what was purported to be the grave injustice of our “legal black hole”: a netherworld in which enemy-combatants — Islamic terrorists — were detained outside Geneva, outside the Constitution, and thus outside the safety-net of laws and rights and courts.
The law, however, is not an end in itself. It is a means to other ends. In the case of the Geneva Conventions, that end is the civilized conduct of warfare. The privilege of honorable treatment is the reward for conducting oneself with honor.
If the whole point of the rules is to promote human dignity, those who find themselves outside the protection of the rules belong in a black hole. The problem is not that the rules are wanting. It is that they don’t countenance barbarians.
It is that they understand repaying torture and slaughter with privilege guarantees only more torture and slaughter. More unspeakable inhumanity.
The brave men and women who put their lives on the line, far from home, to spare each of us the fates of Pfc. Menchaca and Pfc. Tucker know that. Does the Supreme Court?
— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.