The Corner

Janus-in-Chief

Over on the home page, the editors catch Obama doing two mutually undermining things in a vain effort to both (1) be realistic about counter-terrorism and (2) keep up appearances with the Left. It’s not working. While Obama has reopened military tribunals at Gitmo, his enacting Article 75 of Additional Protocol I of the Geneva Convention will undermine their effectiveness:

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. 

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