Don’t hurt me!

2009/04/27

Yes, hurting people is in the news, quite a bit more than the administration may have intended. Or as much as they intended; nobody’s entirely sure anymore if the administration wants to put this out of mind or center-stage in the national consciousness. [1] Er, I’m not going to make any assessment there; I expect that the President will eventually figure out what he wants, and then his sycophants and minions will scurry about to make it so. Meanwhile, there are plenty of questions remaining about the coercive actions in question, but seemingly not so many answers as there are questions.

As I have mentioned before, I am very uncomfortable with the notion of applying retroactively punitive measures to the individuals involved in these actions (and, for that matter, retroactively punitive measures in general). The Powers That Be seem to have other ideas, however. [2] Alas. The idea of punishing actions that are later deemed to be politically distasteful is concerning not only because of the potentially retroactive nature of the punishment, but also because of the ease with which such measures could be abused. How much of a stretch is it to go from punishing politically distasteful actions that are truly illegal to punishing politically distasteful actions that are deemed illegal after the fact? What about actions that are morally distasteful? And how hard would it be to distinguish between these conditions, once we start down that road? Such politically motivated prosecutions are among the hallmarks of all totalitarian regimes throughout history; we should not be so quick to pursue such actions. Remember that any legal decision sets a precedent, making it easier to do such a thing again in the future. And again, and again, etc.

More fundamental, however, is the fact that the actions under review were selected specifically because they did not cause permanent harm; many of them, in fact, while psychologically disturbing, do not appear to be particularly dangerous. [3]Waterboarding, of course, inhabits a substantially more “grey” area than the other actions, but even here, the greatest risk of permanent damage is psychological, not physical. Should such actions be labeled as “torture,” and not something else? Are they in the same league as the mass deprativies inflicted by the Nazis or the NVA? Additionally, should eschew such actions, if they potentially provide useful information? [4] More on this further down.

More importantly, among the fundamental questions that have not been answered is the status of the detainees in question. Various attempts have been made, in particular, the Bush II effort to identify them as “enemy combatants,” as opposed to prisoners of war, and other efforts to arbitrarily apply the Geneva Conventions, regardless of the actual status of the detainees. I say “arbitrarily” because the Geneva Conventions [5] are quite specific with regard to the definition of prisoners of war; Article 4 defines the scope of individuals who are considered legitmate prisoners of war, while further articles define the appropriate treatment of said individuals. Note that the Article does encompass resistance movements (which is probably how most of the insurgent groups identify themselves), provided that all of the following conditions apply to them during the course of their militant activities:

  • That they have a specific superior (commander), who is responsible for directing their actions;
  • That they wear a distinctive sign / uniform that is identifiable from a distance;
  • That they carry their arms (weapons) openly; and
  • That they conduct their operations while respecting the laws of war

While the first stipulation undoubtedly applies, the latter three almost certainly do not. Generally speaking, these insurgents are not members of any specific military organization, and their preferred tactics, even the non-suicidal ones, usually involve ambushes and the like; wearing uniforms, carrying arms openly, etc., are not good tactics when one is attempting to carry out covert operations whilst intermingled among civilian populations. The other combat roles identified in Article 4 also do not apply, since these individuals generally are not members of any nation’s army, and indeed, do not profess allegiance or affiliation to any specific nation.

Herein lies the fundamental difficulty surrounding these individuals: they do not profess allegiance to any specific nation (nor are they claimed by any nation as acting on the latter’s behalf), they do not fight according to the laws and customs of war, [6] and often, they are not even identifiable as combatants until they take action. Based strictly on the Geneva Convention itself, these individuals are not legitimate prisoners of war; Bush II’s attempt at identification has also been deemed unacceptable. How, then, do we identify these individuals, and what rules should be applied to them, as a result? Clearly, they should not be subject to the same protections as those afforded to law-abiding citizens; after all, not only do they actively engage in subverting our rule of law (or so their statements suggest is their intent), they also do not have any respect for our system of law at all. The current administration does not appear to have made any such attempt at identifying the status of these individuals, even though the President has already dictated that they are to be released from the detention facility at Guantanamo Bay. [7] The issue remains unresolved; we must ultimately identify the exact status of these individuals if we wish to apply legal measures to them, and once we make that determination, there must be some justification for the decision. We cannot simply apply an ad-hoc solution to the problem each time the winds of political tastes and fortunes shift, if we are to maintain the assertion that we are a nation that respects and upholds the rule of law and reason.

In addition to the above issues, there are still unresolved questions regarding who knew what, when they knew it, and if these techniques are even useful ones. Some sources suggest that the CIA itself did not perform any meaningful review and assessment of the techniques in question. [8] Others suggest that others outside Bush II’s administration knew about these techniques, or even that the entire Congress knew. [9] Keep in mind that silence on controversial issues can often be interpreted as tacit approval, and ignorance is an explanation, but not an excuse or justification. In a situation such as this, perhaps it would be wiser to simply issue a statement to the effect that our primary intent is to determine if such techniques are acceptable for future use, and leave it at that; political witch-hunts do not bode well for our Republic. Additionally, specific emphasis should be placed on determining the efficacy of these coercive techniques. If such methods provided useful (and verifiable!) information more often than not, perhaps such distasteful matters are the price to be paid for the security of the citizens of our Republic. This, after all, is the primary reason for the existence of the national government, and the needs of our citizens should necessarily trump the needs of non-citizens, particularly when the latter are doing everything within their power to subvert the safety and security of the former. Please do not interpret this to mean that I think we should impose our will on the world with impunity; we are, after all, a civilized nation, despite any claims to the contrary. I am merely pointing out that when the rights of non-citizens comes into conflict with the security of our own citizens, we must think long and hard about defending the former, particularly when such defense may come at the expense of jeopardizing the latter.

Notes:

[1]: CNN commentary, 23 April 2009.

[2]: See here and here; CNN articles, 22 April 2009 & 26 April 2009, respectively.

[3]: CNN article, 16 April 2009.

[4]: CNN article, 21 April 2009.

[5]: The Third Geneva Convention is the one in question; full text available here.

[6]: I realize that this is something of an oxymoron, but there are such things as laws of war (jus in bello); see here (Wikipedia article). Generally speaking, I tend to think that Hobbes’ view is more commonly the case, specifically the following:

“[in war] this also is consequent: that nothing can be Unjust. The notions of Right and Wrong, Justice and Injustice have there no place. Where there is no common Power, there is no Law: where no Law, no Injustice. Force and Fraud are in war the two cardinal virtues. Justice and Injustice are none of the faculties neither of the Body nor the Mind…they are qualities that relate to men in Society…”
-Thomas Hobbes, The Leviathan, Chapter XIII

but the concept of jus in bello exists, nonetheless. Of course, there are legitimate situations that warrant withholding the use of force, but there are also compelling reasons to ignore such restrictions, as well. What can I say? War is a tricky, nasty affair.

[7]: Via Executive Order; see here for full text of the order on the White House website. Note that the order indicates that the detainees have the “constitutional privilege of the writ of habeas corpus” (Section 2c); to whose constitution does the President refer? I am not entirely sure that we should apply our own constitutional protections to these individuals. Granted, the right of habeas corpus itself is generally respected by all civilized nations, but the notion of applying constitutional privileges to these individuals is curious, IMHO.

[8]: Agence France-Presse article, 26 April 2009. (Don’t ask me how the French found out about this, though)

[9]: See here and here; Fox News interview from 24 April 2009 and Augusta Chronicle article from 27 April 2009, respectively. Of course, I realize that the Fox News interview is automatically suspect due to the obvious bias of the organization, but the information contained therein is interesting, nonetheless (moreso if it turns out to be true).

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