Friday, September 15, 2006

On legal status of detainees 
I'm resurrecting a few posts I wrote from the summer of 2004, and examining my thinking in light of the current wrangling over how extensively we should codify what constitutes "torture." In hindsight, I think I got it about right back then, and was actually ahead of the debate.

Here's a post from June of 2004:

Alan Dershowitz--the guy who came up with the 'torture warrants' concept--is saying the Geneva Conventions are outdated, and no longer apply to a war against shadowy, stateless terrorist groups who do not wear uniforms, nor fight under a responsible commander. Indeed, he's saying what I think has become self-evident in recent years--that the Geneva Conventions have become a sort of ju-jitsu weapon which terrorists are now using against democracies.

He's arguing that it's time to change the equation.

Here are his specific proposals:

1.) First, democracies must be legally empowered to attack terrorists who hide among civilians, so long as proportional force is employed. Civilians who are killed while being used as human shields by terrorists must be deemed the victims of the terrorists who have chosen to hide among them, rather than those of the democracies who may have fired the fatal shot.

He won't get any help from the Iraq Body Count project, who, as I and others have pointed out, draw zero distinction between Iraqi civilian victims of terrorist action and insurgent combatants and terrorists killed in battle. By extention, I would include every media source who uncritically cites the IBC project as a source. Even if the laws of war are changed to allow offensive action to take out terrorists (and I'm not ready to agree with Dershowitz that the law of land warfare prohibits such action in the first place), there will be ideologically motivated 'think tanks' and centers like IBC compiling data and skewing it to serve their own ends, and they will have useful idiots in the media to help them propogate their message.

Second, a new category of prisoner should be recognized for captured terrorists and those who support them. They are not "prisoners of war," neither are they "ordinary criminals." They are suspected terrorists who operate outside the laws of war, and a new status should be designated for them - a status that affords them certain humanitarian rights, but does not treat them as traditional combatants.

I am not a lawyer. But isn't that pretty much what the US has done by designating certain detainees in the Afghan war as "unlawful combatants?"
US policy in Iraq has not been to draw such a distinction between guerrillas who focus their fight against military targets and terrorists who prey upon civilians. But it's clear that Zarqawi is in a totally different category from someone who launches mortar shells at coalition compounds. The latter may be stupid and misguided, but at least I can respect him.

But I'd put Zarqawi down like a sick animal.

So yes, Dershowitz is right--there is a useful distinction to be made between a guerrilla and a terrorist who makes a policy of randomly slaughtering the innocent. And that distinction ought to be codified.

Third, the law must come to realize that the traditional sharp line between combatants and civilians has been replaced by a continuum of civilian-ness. At the innocent end are those who do not support terrorism in any way. In the middle are those who applaud the terrorism, encourage it, but do not actively facilitate it. At the guilty end are those who help finance it, who make martyrs of the suicide bombers, who help the terrorists hide among them, and who fail to report imminent attacks of which they are aware. The law should recognize this continuum in dealing with those who are complicit, to some degree, in terrorism.

My unit conducted numerous operations against those in the latter category. If we had reliable intelligence from multiple sources that so-and-so was a major financier in the terrorist or insurgent circles, we'd go after him with the same deadly force we'd use to go after a fighter himself.

In practice, the financiers, the purveyors of fake passport papers, and the recruiters were considered legitimate military targets as surely as the fighters themselves, and deadly force was authorized, if neccessary, to bring them down.

This is as it should be, in an intense counterinsurgency fight. I don't recall anyone ever having problems with it in a Law of Land Warfare context--so long as the force used was proportional. We didn't want to level a neighborhood to get a small-time cash runner, obviously.

Would we have been willing to do so to get Saddam himself? Or Osama Bin Laden?

Well, the best thing to do for the neighborhood is to turn them over to us and take the reward money, rather than find out.

Strategic ambiguity is a beautiful thing.

Fourth, the treaties against all forms of torture must begin to recognize differences in degree among varying forms of rough interrogation, ranging from trickery and humiliation, on the one hand, to lethal torture on the other. They must also recognize that any country faced with a ticking-time-bomb terrorist would resort to some forms of interrogation that are today prohibited by the treaty.

The Geneva Conventions are predicated on the assumption that a soldier is a soldier, and that most soldiers really don't know a whole lot, anyway. So there's not much to be gained by harsh interrogation measures. The implicit assumption is that a typical soldier is NOT part of a conspiracy to release chemical weapons in Jordan sufficient to kill tens of thousands of civilians, for example.

This assumption is now demonstrably false. There are people out there who ARE part of just such conspiracies and worse. With a formal distinction made between legal combatants and terrorists, the kid gloves can come off, and maybe we can bust up some more cells.

Alan Dershowitz is on the right track.

(More as I find it in the archives)

Splash, out


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