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Dealing With Captured Terrorists

One of the unintended consequences of the insistence of rights for Guantanamo detainees is that life might become far more nasty, brutish and short for terrorists captured on the battlefield. As Ralph Peters writes in his article Kill, Don't Capture (h/t Powerline):

Traditionally, those who masquerade as civilians in order to kill legal combatants have been executed promptly, without trial. Severity, not sloppy leftist pandering, kept warfare within some decent bounds at least part of the time . . .

. . . Consider today's norm: A terrorist in civilian clothes can explode an IED, killing and maiming American troops or innocent civilians, then demand humane treatment if captured - and the media will step in as his champion. A disguised insurgent can shoot his rockets, throw his grenades, empty his magazines, kill and wound our troops, then, out of ammo, raise his hands and demand three hots and a cot while he invents tales of abuse.

Captured terrorists become such a liability once they are in custody, why not just kill them? It is indeed the legal, customary way of dealing with them, and has been in international law for hundreds of years. Emmerich de Vattel in his 1758 book The Law of Nations, which was enormously influential among America's Founding Fathers, stated that such belligerents were no more than robbers fit to be hanged.

The 1942 Supreme Court in Ex Parte Quirin summed up the law as it addresses unlawful combatants:

. . . 'Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.'

. . . 'Armed Prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.'

. . . 'persons who take up arms and commit hostilities' without having the means of identification prescribed for belligerents are punishable as 'war criminals'. 'All war crimes are subject to the death penalty although a lesser penalty may be imposed'.

. . . "anyone who participates directly in hostilities without being subordinate to an organized movement under a Party to the conflict, and enforcing compliance with these rules, is a civilian who can be punished for the sole fact that he has taken up arms" and that "anyone who takes up arms without being able to claim this status [of a "lawful combatant"] will be left to be dealt with by the enemy and its military tribunals in the event that he is captured."

Quirin notes the difference in treatment between lawful and unlawful combatants - "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." The Geneva Conventions, far from providing 'rights' to such unlawful combatants, seeks to punish them for committing unlawful acts of war by removing all protections for them.

Groups such as Human Rights Watch are arguing for far more lenient treatment of unlawful combatants, saying, "The Supreme Court found that common article 3 to the 1949 Geneva Conventions applies to the armed conflict with al-Qaeda. Common article 3 provides that all detainees, whether prisoners of war, civilians or so-called unlawful combatants, are legally entitled to humane treatment “in all circumstances.” They may not be subject to “cruel treatment and torture” or “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

This is not what Common Article 3 says. It states that the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Article 5 of the Third Geneva Covention states that "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

After that, the captured terrorist may be hauled before a military commission, which is the 'regularly constituted court' traditionally convened for such a purpose, and the defendant is summarily executed. Much less messy, it turns out, than dragging them down to Camp X-ray.

I am not advocating that terrorists captured on the battlefield should be executed in order to avoid meddlesome legal proceedings. Such prisoners could provide valuable intelligence, and maybe there is some propaganda advantage to being perceived as a benevolent captor. Personally, I think the enemy needs to know that fat and lazy Americans can ruin your day; but be that as it may, what Human Rights Watch and other liberal groups are advocating completely undermines the intent of the Geneva Conventions: which is to reward proper, lawful conduct on the battlefield with good treatment for POWs. Further, what these groups seek is to grant the full panoply of constitutional rights to terrorists that not even lawful combatant POWs enjoy! They are advocating a perverse outcome.

This does not even get to the question of how al-Qaeda treats prisoners - why should their agents be treated any better than those they capture?

The inevitable argument is that this leads down a slippery slope that somehow unravels our democracy. I don't know why such an argument should be made, there simply is no evidence for it. Abraham Lincoln's suspension of habeus corpus, far from being detrimental to democracy, hastened its return throughout the nation. Woodrow Wilson wrapped up dissenters during the Palmer Raids of 1918-21. The Supreme Court's Korematsu decision backed up FDR's decision to intern Japanese-Americans, and yet our Republic somehow survived. The Allies committed what could objectively be called war crimes on a mass scale to defeat the Axis, such as the firebombings of Tokyo, Dresden, Hamburg, and many other cities, and the nuclear attacks on Hiroshima and Nagasaki. Yet democracy did not collapse.

One could argue that such severe actions actually saved far more lives than it spent, considering how much they shortened the war. If true, is that not the real humanitarian outcome? It may well be so with the Gitmo detainees, where misplaced 'humanitarian' concerns fail to deter future enemies, and in fact gives jihadis further chances to agitate against the U.S.

Posted by Ken McCracken · 10 July 2006 08:27 PM

Comments

Posted by: lester at July 11, 2006 12:57 PM

Posted by: Ken McCracken at July 11, 2006 01:44 PM

Posted by: lester at July 11, 2006 01:54 PM