The American Spectator

Political Hay

In a famous thought experiment, you're asked to suppose you've captured a terrorist who's planted a bomb aboard a commercial airliner. How far will you go to obtain information from him? Will you: (1) Threaten to break his arm? (2) Threaten to amputate his arm? (3) Bend his arm behind his back? (4) Actually break his arm? (5) Actually amputate his arm?

Many of us would start to feel queasy around # 2; few of us, I hope, would proceed to #4. The problem is that even #1 arguably constitutes "torture" under several international conventions to which the United States is a signatory.

Count on 2005 to be a year of torture talk, well beyond the confirmation hearing of Alberto Gonzales for Attorney General:

• Last November, the International Red Cross submitted a report to the United States government alleging that the American military has used psychologically and, occasionally, physically coercive measures "tantamount to torture" to extract intelligence from prisoners at Guantanamo Bay; the American Civil Liberties Union has recently uncovered FBI documents supporting the Red Cross's claims. The story isn't going away.

• The court martial of Charles Graner, suspected ringleader of the atrocities at Abu Ghraib prison in Iraq, is upcoming in Texas. More trials of Abu Ghraib defendants will follow.

• The Gonzales hearing is already underway. Nominated by President Bush to succeed John Ashcroft as Attorney General, Gonzales, as White House legal counsel, commissioned two controversial 2002 memos which questioned the definition of torture and argued that Gitmo prisoners didn't qualify for protections laid out, most conspicuously, in the Geneva Conventions.

Bush-haters will of course seize on each of these opportunities to score political points, but the underlying issues are intellectually weighty. Waging an effective war on terror may require a legalistic reading of the Geneva accords. For example, the Third Geneva Convention (1949) declares that prisoner of war status is conferred on captured combatants who are "commanded by a person responsible for his subordinates," have "a fixed distinctive sign recognizable at a distance," are "carrying arms openly" and are "conducting their operations in accordance with the laws and customs of war."

Terrorists, obviously, don't meet these tests. The last criterion alone, which outlaws the deliberate targeting of civilians, by definition excludes every member of al Qaeda. POW status is crucial because Article 17 of the 1949 Convention states, "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind."

Such restrictions may indeed be obsolete in the war on terror -- as the Gonzales memos suggest. Senator Joseph Biden (D-Del.) has argued the reverse, i.e. that abiding by the Geneva Conventions remains necessary so that "when Americans are captured they are not tortured." It's a legitimate concern. The problem is that no one we're now fighting cares about reciprocity. The laws and customs of war are meaningless to them. They target civilians, take hostages, behead prisoners. They're opportunistic killers, not soldiers. Justice, according to Aristotle, consists of proportionality, of treating equals equally and unequals unequally. It's unjust, therefore, to accord unlawful combatants the same rights of lawful combatants. To do so is to encourage lawful combatants to break the law.

President Bush has stated categorically that all foreigners detained by the United States must be treated "humanely." What happened at Abu Ghraib clearly didn't comply with Bush's standard; that's why Graner and his cohorts are headed for trial. But "humanely" is a usefully vague term. Perhaps it includes threats. Perhaps it includes verbal abuse and sleep deprivation. Perhaps it even includes roughing up -- as long as no permanent injury results.

"Men can only be civilized," George Orwell wrote, "while other men, inevitably less civilized, are there to guard and feed them."

Slopes don't come more slippery than this. But war is a nasty business. Collectively, we're culpable for what's done in our name. Let us, therefore, have this debate in 2005 -- in a way that excludes partisan hysterics. Civilization requires it.

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Business, Law, Military, Iraq, NATO