Terrorism and the Geneva Conventions
So today Drum notes that Jonah Goldberg (um, just incidentally, I'm rather embarrassed to discuss anything Jonah Goldberg says. He's not a person who's thoughts are worthy of widespread discussion) says the following:
"If Democrats want terrorists to fall under the Geneva Convention let them say so. My guess is most won't, if they're smart."
Uh....um....uh........huh?
Drum immediately goes on record, writing that he does, in fact, think that terrorists should be treated in accordance with the Geneva Conventions. And I do, too (ignoring ticking time-bomb cases for the time being).
Um...I thought that folk on our side of the fence had been fairly clear about this.
I guess JG thinks that this will show us to be soft on terrorism. What it shows, however, is that we think that persons have certain inalienable rights. These rights, being inalienable, cannot simply be given or taken away by anyone, including the king (or a president with a king complex), and they are not created by treaties or other agreements. Even though the Conventions may not, technically speaking, apply to al Qaeda, that doesn't matter if you think that they simply articulate rights that persons already have.
Comments like ths one from Goldberg seem to suggest that way, way too much of his mental energy is going into thinking about how to play the GWoT for domestic political gain. Instead of trying to advance serious public discussion of the issue, he uses his forum primarily for cheap shots at his political opponents. But, come to think of it, JG is not the kind of guy who's really going to advance the discussion. Still, he could at least try to do no harm.
So today Drum notes that Jonah Goldberg (um, just incidentally, I'm rather embarrassed to discuss anything Jonah Goldberg says. He's not a person who's thoughts are worthy of widespread discussion) says the following:
"If Democrats want terrorists to fall under the Geneva Convention let them say so. My guess is most won't, if they're smart."
Uh....um....uh........huh?
Drum immediately goes on record, writing that he does, in fact, think that terrorists should be treated in accordance with the Geneva Conventions. And I do, too (ignoring ticking time-bomb cases for the time being).
Um...I thought that folk on our side of the fence had been fairly clear about this.
I guess JG thinks that this will show us to be soft on terrorism. What it shows, however, is that we think that persons have certain inalienable rights. These rights, being inalienable, cannot simply be given or taken away by anyone, including the king (or a president with a king complex), and they are not created by treaties or other agreements. Even though the Conventions may not, technically speaking, apply to al Qaeda, that doesn't matter if you think that they simply articulate rights that persons already have.
Comments like ths one from Goldberg seem to suggest that way, way too much of his mental energy is going into thinking about how to play the GWoT for domestic political gain. Instead of trying to advance serious public discussion of the issue, he uses his forum primarily for cheap shots at his political opponents. But, come to think of it, JG is not the kind of guy who's really going to advance the discussion. Still, he could at least try to do no harm.
posted by Winston Smith at
9:03 AM
10 Comments:
Everything Jonah Goldberg says should be discussed, if for no other reason than a lot of people share his views and are a big chunk of our polity.
Secondly, because you get the opportunity to show how dumb conservatives are.
But what should not be done is simply calling him stupid or heinous or whatever without arguing why.
Drum (picking out only the small political part of JG's thoughts on the whole topic) writes:
[those] we capture on a battlefield should be subject to the minimum standards of decency outlined in the Geneva Conventions.
Well, for one thing, the Geneva Conventions allow us to execute un-uniformed combatants on the spot.
Further, once captured, the Geneva Conventions accord far more than a minimum level of decency; they're quite comfy really.
But he would actually have to read Goldberg, et al., to learn that.
The Geneva Convention is not a party, it's an agreement, a contract, between warring parties. Treat ours humanely and we'll do the same for yours.
There is a problem in a contract when I pay you regardless of whether you hold up your end of the bargain or not. In fact, if you're a bad guy, it pretty much ensures that you won't fulfill your side.
Now I don't recommend we cut off al-Qaeda heads. But conceptually, probably the only way to get them to stop would be to do so.
Tom, I feel I only come out of the woodwork to comment here when I disagree with something you're saying about detention issues, which is too bad because I feel like I'm always picking a fight.
But with that said, the Geneva Conventions are not merely a contract -- they've become customary international law, according to the U.S. military. They're also explicitly not quid pro quo. This mutuality theory of the Conventions does not make very much sense and is not the law.
Though I suppose one can disagree as to whether common article 3 is particularly "comfy" -- I'd argue that it doesn't so much force a certain level of comfort as it does prohibit the detaining power from visiting discomfort on the detainee *intentionally*, which is rather a large difference to my mind.
And, not to be snarky, but I'm *very* curious where you get the idea that summarily executing those placed hors de combat, no matter what they're wearing, is permitted under the law of armed conflict. Probably you're thinking of Article 68 of Geneva IV, which so emphatically does not say what you're asserting it says that I feel like crying.
Finally, I disagree that cutting off al-Qaeda heads would in any measure stop them from wanting and trying to kill us.
You've got a point about my drive-by snark against Mr. Goldberg. I really do appreciate you working gently to keep me in line on such things.
I'm fixin' to bone up on my Geneva Conventions...sounds like Mike already knows what he's talking about here.
The one thing I thought I DID know about the GCs was that they're not--as Mike points out--*quid pro quo*.
You could be right about everything you say, Mike. And I appreciate your intro. I have all the time in the world for persons of good will.
---What is the proper treatment according to Geneva for those who kill out of uniform? Uniforms are a big deal. Even a nice armband fulfills the obligation.
You can't shoot spies or those who blend in with the civilian population anymore? Well, you should.
Why else would the the Geneva Convention demand uniforms? Uniforms formalize what is at its heart a gentlemen's agreement.
---I think international law, as you use it, and we all do, is largely a happy fiction, I'm afraid. Laws without consequences are not laws, they are unilateral disarmament.
Nations of good will find a way to use the mechanism to resolve conflicts, but many or most of the UN members (I've lost count for accuracy here) are not nations of good will.
That's why the UN is a joke. Sorry. "We could devise a constitution for a race of devils, if only they were intelligent," a great thinker once said. No such luck in Turtle Bay.
Between entities of good will (or just intelligence), things get worked out, with or without laws or UNs. Sort of like people.
The UN is OK as a sort of United Way, except they steal much more from the intended recipients.
---I was speaking of reciprocity: Cutting off al-Qaeda heads is the only chance of getting them to stop doing the same. Not that I think it would work, but nothing else has even a prayer.
The Geneva Convention was conceived in the spirit of reciprocity, not morality. Sorry again.
I know a bit about war, as we all should and in our own ways, do. If we may think radically together for a moment, our baggage dropped at the door, I was very much taken with Ward Churchill's argument about little Eichmanns, which dealt with an inseparability of governments, combatants, and civilians. V-2 rockets, the rape of Nanking, Hiroshima.
Geneva was conceived among military professionals. We are in a far different age.
Or perhaps the same old one. "Spengler," as always, is fascinating.
(I know nobody ever looks up my links, or reads more than the first paragraph or two, but I try anyway.)
It has been my belief that if we used Bush and Iraq as touchstones and not the main event around here, we could get into some serious digging together. Ward Churchill frightens me, because he might be right.
Well, WS, I confess I had typed that Kevin Drum is a moron. But I've followed many of your links to him. He's patently not. I just thought he was a bit sloppy on this occasion. The advantage of the computer over the typewriter is that "backspace" rectifies much greater errors.
If I may quote my favorite Kinks song Written not by Ray Davies, but Brother Dave:
So we will share this road we walk
And mind our mouths and beware our talk...
Strangers on this road we are on
But we are not two, we are one
(And I will await a disposition of the GC(s). I'm not the fan of legalities I used to be, because I have learned that, per Dickens, if the law suppose that, the law is a ass.
Neither do I expect a clear verdict. Law tends to be like that, insufficient. But if the GC(s) turn out to be an exchange of unilateral disarmaments, I shall be surprised. A Convention would not be required.)
Well, the whole inalienable thing definitely removes rights under the GC from ANY discussion of quid pro quo, contract rights, etc.
Assuming, of course, that you believe in such things.
I would like to be on the record of believing such things, and because of this, the GC applies to everyone. Even the most heinous bastards on earth.
So, too, I would argue, does the rule of law once a person is detained. If you decide to execute folks on the spot, well, my point is moot. Such actions do beg the question of how exactly the person you just executed was judged to be a non-uniformed combatant (combatant being the tricky term), but there you go.
If we want to hold certain truths self-evident, it is very, very difficult for me to understand how we can hold the GCs anything but. We can kill you in war, but even in war, if you are captured, we have to do certain things before we are allowed to kill you. (And we are supposed to do certain things to make sure that you deserve to be killed...even in the heat of battle/war).
That's a fair deal in my book if we are going to operate under the idea that certain rights are inalienable, and warfare is something that happens.
This war on terror is not something new, and we have ways to deal with it if we are serious, level-headed, and actually want to achieve something instead of using it as an excuse to live out authoritarian fantasies and "kick ass" in a way that doesn't even begin to pass the moral smell test.
"---I think international law, as you use it, and we all do, is largely a happy fiction, I'm afraid. Laws without consequences are not laws, they are unilateral disarmament."
Well, that puts you more-or-less in the camp of the foreign policy "realists."
I don't buy it. If you think that laws are meant to codify reasons for action that have their rational force grounded in something more than mere agreement and muscle, then you recognize that laws can rationally bind action even in the absence of any enforcement mechanism.
The real question here--and there's no reason to take a detour through the 'law' idiom--is whether we as a nation ever have reason to act on principle rather than mere national interest. Cheney and many other members of the GOP say 'no,' and your claim here puts you in their camp.
This is just ethical egoism writ large.
When I talk law, I talk law. Ethics, ethics.
What I object to is ping-ponging between them, which I think happens way too often, and has just happened in these comment sections.
I'm more than willing to argue from natural law, but I do not expect that to have any currency here. I'm just trying to find the lingua franca, facing a tower of babel.
An example of rhetorically mushing ethics and law, in this case by Drum: "Minimum standards of decency" are by no means synonymous with the Geneva Conventions, which do far more. (For instance, you gotta let 'em smoke cigarettes, which sounds inhumane to me.)
Ethical egoism? Please. Indulging one's ethical narcissism that results in somebody else's death fits the bill better. Putatively, some non-Geneva permitted interrogations at Gitmo (not talking torture here) have resulted in info that caught terrorists and saved innocent lives.
That is the real nexus. Maintaining that terrorists don't get Geneva protection is hardly shunning minimum standards of decency and advocating torture. Things are more complicated than such bland moralizing.
(And if you want to discuss enforcement and the nature of law, that would be interesting. For me to say international law is a joke doesn't propose abandoning ethics. But there are usually grave consequences when laws aren't enforced.)
From Article 3 of the Geneva Conventions:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
At least this article of the Conventions, which is all the Court claimed to apply, does set a minimum.
And Tom says this:
Putatively, some non-Geneva permitted interrogations at Gitmo (not talking torture here) have resulted in info that caught terrorists and saved innocent lives.
"Putatively" is the key here. Is there real evidence for this? I think setting this up as an issue of according certain rights to (alleged) terrorists at the expense of security is misleading. It has the feel of the kind of scenarios philosophers like to talk about but, in the real world, don't often occur. I'd like some kind of evidence that this is actually the case, and that treating people in accord with Article 3 actually risks innocent lives.
Perhaps what Tom means is that some of the interrogations involve violating other articles of the GC. That may be more plausible, but again, the Court's ruling didn't say that all articles apply, only 3, which does set the minimum.
So if this is going to be anything other than a purely intellectual debate over the merits of deontology and consequentialism as applied to hypothetical cases, we need some evidence that applying Article 3 leads to worse consequences than not applying it.
(I should note that I'm not against purely intellectual and hypothetical debate, we should just be clear that that's what this is, and that we likely don't have an actual instantiation of that kind of hypothetical.)
Yeah, OK, Mr. Rotgut. I'm with most of the latter part. And although memory says that you insulted me last time around, I think amnesia can be a virtue. Fool me once, well, it's a mulligan.
occurring in the territory of one of the High Contracting Parties
...might be a loophole here. But I'm not overly interested in legalities, which is why (I admit) I'm not up on them. Fact is, learned men disagree, and so do members of the Supreme Court, who seem to have the power to decide anything on any grounds, sound or not, that they wish.
Even when the law is properly interpreted, it might not be moral or wise.
I've been a skeptic on these things since Dred Scott.
I don't have all the answers, just questions. I wrote "putatively" quite on purpose, to be fair, despite seeing some interviews with Gitmo interrogators the other night who said it was so, that they caught bad guys with info gathered doing interrogations that went beyond Geneva's name rank and serial number.
These guys don't have ranks or serial numbers, and probably half their names are fake.
The philosophy of law, well, that might be worth a whack. I would rather philosophize than litigate.
Is "eye for an eye" unjust? If you could save an innocent, would you kill the guilty? If you spared a murderer and he went on to kill an innocent, on whose head is the responsibility? If you let a man go who you knew for a fact was a homicidal maniac because of "lack of evidence," and he killed again, how would you feel?
Clean? I was just following orders? Following the law?
This is the stuff we're dealing with, not cardboard representations of it. I'd hold someone in Gitmo for a million years if I truly believed it would save your or someone else's life, legal proof or no.
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