Treaty Treatment at Git'mo

Progressives, the media and Congressional Democrats have been shrilly certain our treatment of Guantanamo Bay detainees violates international law. According to this view, America has transgressed human rights, destroyed the evidence and denied the facts. And many progressives are convinced the Bush Administration deliberately ignored the rule of law.

I have previously rebutted this notion. Tuesday's testimony by Former Undersecretary of Defense Douglas Feith supplies additional support. Feith spoke before the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Civil Liberties; his opening statement in part says:

the United States had a compelling interest in showing respect for Geneva. The Secretary, we said, should urge the President to acknowledge that Geneva governed our war with the Taliban. We argued that Taliban detainees should receive the treatment to which they were entitled under Geneva. But we did not think they had met the defined conditions for POW privileges under Geneva.

After our meeting, Secretary Rumsfeld asked me to write up what General Myers and I had argued for. The Secretary wanted to use the write up as “talking points” for the National Security Council meeting with the President on February 4, 2002.

The memo I drafted and then cleared with General Myers stressed that Geneva is crucial for our own armed forces. It said that it is “important that the President appreciate DOD’s interest in the Convention.” I described Geneva as a “good treaty” that “requires its parties to treat prisoners of war the way we want our captured military personnel treated.” I noted that “US armed forces are trained to treat captured enemy forces according to the Convention” and this training is “an essential element of US military culture.” I wrote that Geneva is “morally important, crucial to US morale” and it is also “practically important, for it makes US forces the gold standard in the world, facilitating our winning cooperation from other countries.”

The memo said that “US forces are more likely to benefit from the Convention’s protections if the Convention is applied universally.” So I warned: It is “Highly dangerous if countries make application of [the] Convention hinge on subjective or moral judgments as to the quality or decency of the enemy’s government. (That’s why it is dangerous to say that [the] US is not legally required to apply the Convention to the Taliban as the illegitimate government of a ‘failed state.’)”

The memo explained why a “pro-Convention” position is dictated by the logic of our stand against terrorism. I argued:

o The essence of the Convention is the distinction between soldiers and civilians (i.e., between combatants and non-combatants).

o Terrorists are reprehensible precisely because they negate that distinction by purposefully targeting civilians.

o The Convention aims to protect civilians by requiring soldiers to wear uniforms and otherwise distinguish themselves from civilians.

o The Convention creates an incentive system for good behavior. The key incentive is that soldiers who play by the rules get POW status if they [are] captured.

o The US can apply the Convention to the Taliban (and al-Qaida) detainees as a matter of policy without having to give them POW status because none of the detainees remaining in US hands played by the rules.

The memo urged “Humane treatment for all detainees” and recommended that the President explain that Geneva “does not squarely address circumstances that we are confronting in this new global war against terrorism, but while we work through the legal questions, we are upholding the principle of universal applicability of the Convention.”

This memo represented the thinking of the top civilian and military leadership of the Defense Department. I felt confident being aligned with General Myers on this matter and we were both pleased that Secretary Rumsfeld asked me to make these points to the President at the NSC meeting, which I did. The department’s leadership took a strongly pro-Geneva position.

The Committee can therefore see that the charge that the department’s leadership was hostile to Geneva is untrue. . . I pointed out that Geneva grants POW privileges to captured fighters as a incentive to encourage good behavior. Geneva’s drafters wisely demanded that fighters meet four conditions if they are to receive such privileges: They must (1) wear uniforms, (2) carry their arms openly, (3) operate within a chain of command and (4) obey the laws of war. These conditions serve the Convention’s highest purpose, which is protecting the safety of non-combatants in war zones. Many journalists and others wrongly assume that if Geneva governs a conflict then the detainees must receive POW treatment. But that is misconception. Detainees in wars governed by Geneva are entitled to POW treatment only if they meet these four conditions.

In early 2002, it was clear that the President would be urged by some commentators to grant POW status to all the detainees as a magnanimous gesture, without regard to whether they met the conditions. I believed that would be a bad idea. First of all, it would have the opposite of its intended humanitarian result. Granting POW status to terrorists who pose as civilians and who purposefully target civilians would undermine the incentive mechanism that Geneva’s drafters knew was crucial to the Convention’s humanitarian purposes.

Merely saying so doesn't mean Feith is right. But progressives rarely address the issue. In particular, I remain frustrated by the left's (see Dahlia Lithwick mocking Feith) continued citation to inapplicable Geneva Convention provisions, fostered by ignorance of the treaties' approach and application. Even apart from the possible weakening of national security, given that the treaties were designed as mutual obligations, unilaterally treating armed and concealed terrorists as prisoners of war who have surrendered could undermine carefully established disincentives to war crimes.

Can you say "unintended consequences"? Sure--I knew you could.

(via Combs Spouts Off, Gateway Pundit)