On Monday, President Obama issued a new executive order (with attendant new policies explained in the White House’s “New Actions on Guantanámo and Detainee Policy” fact sheet) that resumes military-tribunal prosecutions of terrorists detained at Guantanámo Bay.
Any concession by the president to the realities of counterterrorism is welcome news. But there is one aspect of the administration’s new policies, and its rhetoric, that stands out as clearly a step in the wrong direction. Snuck in at the very end of its “New Actions” fact sheet, the White House adds one significant change in detainee policy, which was explained by Hillary Clinton the same day. “The United States,” the secretary of state said, “out of a sense of legal obligation, will adhere to the set of norms in Article 75 of Protocol I in international armed conflicts.”
Protocol I is part of the 1977 amendments to the 1949 Geneva Conventions; it has not been ratified by the United States. Implementing its restrictions would overturn decades of U.S. precedent initiated by President Reagan and maintained to the present, including by the administration of Bill Clinton. This move, and the language used to justify it, could greatly harm U.S. national-security interests.
To be clear, Obama is not submitting Article 75 of Protocol I for Senate ratification, as has been reported elsewhere. His administration has merely announced that it will voluntarily abide by it. And that is equally or more harmful: Upon what authority the Obama administration presumes to enact these rules and to treat Article 75 as legally binding, though the Senate steadfastly has declined to ratify it, is a mystery. It is also a substantial usurpation of congressional power by the White House.
Generally, any extension of additional rights to terrorists should be presumptively suspect. Those who do not respect the law of warfare are not entitled to its protection. A main purpose of the Geneva Conventions’ protections of lawful combatants is to incentivize lawfulness in combat, a purpose undermined by the extension of its protections to terrorists and non-uniformed combatants — that is, to the types we detain at Guantanámo, and those we will likely face in future wars and antiterrorism actions.
Specifically, many of the provisions of Article 75 would make prosecutions of terrorists — particularly by military tribunal — unduly burdensome. Some of Article 75’s restrictions sound unobjectionable, mainly because they are vague. But that vagueness renders them unpredictable in their implementation, and hence debilitating. One item forbids “outrages upon personal dignity, in particular humiliating and degrading treatment.” What does that include? It is not clear, and that is the problem — such a provision could be interpreted and used to stall even mild interrogations. Another provision demands that “anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him.” This could upend the Bush-era policy allowing soldiers to relay their testimonies from the field to the courts, forcing our military to take soldiers involved in the capture of a detainee away from battle in order to testify at trial. Other provisions are equally burdensome.
Over the long term, Secretary Clinton’s suggestion that the United States has a “legal obligation” to respect the provision will set a bad precedent. In effect, the United States is committing itself to extraconstitutional restraints and inviting others to hold us to those standards. It’s not clear why Article 75 — which was adopted to protect “anti-colonial” fighters, and which until now has been rejected by all presidents since, both Democratic and Republican — today deserves our adoption and the elevation of its status in international law. More, the extra rights accorded to detainees by Article 75 will likely be used in the future to support the argument that the detainees cannot receive the treatment they are entitled to if they are tried by a military commission. So while Obama is ostensibly (and rightly) reinitiating military tribunals at Guantanámo, he is, Janus-like, simultaneously undermining our ability to prosecute such trials, now and into the future.
The first parts of Obama’s recent executive order suggested that he had finally subordinated naïve civil libertarianism and internationalist dreams to the hard realities of anti-terrorism. But the last provisions he tacked onto his order constitute another capitulation to the moralistic Left. Obama can either protect national security or appease his base. He can’t do both. And he should stop trying.