The Policy Implications of Dealing With Terrorists
Ξ January 31st, 2010 | → 1 Comments | ∇ Politics |
White House spokesman Robert Gibbs said that he fully expects that Khalid Sheikh Mohammed to be found guilty and executed in an interview over the weekend. This is a sentiment that I’ve heard a couple times coming from the White House. It has always bugged me, as it sounds suspiciously like the Obama administration is conducting a show trial. That isn’t to say I feel that they’re railroading KSM or that KSM is anything other than guilty, but rather that the Obama administration and their supporters are going down a very dangerous path without fully considering the implications of pursing this policy.
Neo-conservatives have always objected to criminal trials for terrorists, but I feel as though their position is terribly misunderstood by the liberals that oppose them. I get the impression that there is the impression amongst the left that the neo-conservative position taken by the early Bush administration and Republicans is borne out of a simplistic, ultra-nationalistic desire to “get ‘em” and “punish the wrongdoers”. In fact (and if you ever watch the Daily Show interviews with Cliff May and John Yoo, one can get a sense of the depth of consideration given to the problem), there are real problems of how to deal with terrorists in a legal and procedural way in such that it does not compromise our moral standing but also does not compromise the integrity of the Geneva Conventions.
It’s the Geneva Convention that is really at the center of everything. The Conventions are sort of the crown jewels of International Law – one of the few treaties that are designed to survive and remain in force during times of war. It’s achieved a sanctified status, and anyone who violates it is considered a pariah by the civilized world. But it has a single major shortcoming as it applies to the current conflict: it applies to the armed forces of nation-states. The world has not seen an international armed force since the Knights Hospitaller were overrun by the Ottomans. Al-Qaeda is not a signatory of the Convention nor is it associated or controlled by any signatory. What, then, to do with members captured?
They are not soldiers as defined by the Conventions. To treat them as such would mean that not joining the Conventions or, indeed, violating the Conventions would have few consequences. You would be treated the same either way. The fear of reciprocity is a major reason the Conventions are adhered to in times of war. Neither are terrorists civilians. They are the opposing force, not innocents caught in the conflict.
Then, what are we to do with them? They are not civilians, but neither are they soldiers as defined by the Conventions. The most reasonable term for them are “illegal combatants” – that is armed forces that operate outside the Conventions. There are well established rules and laws for dealing with civilian populations and for dealing with soldiers, but not for these “illegal combatants”. How are captured terrorists to be held? How are they to be interrogated? That is the question presented to John Yoo, who was tasked with drawing the line between aggressive interrogation and torture.
The line drawn allowed for the use of sleep deprivation and water-boarding, the two techniques most often listed as “torture” by detractors. And certainly, I would say that the use of those techniques against soldiers or civilians as protected by the Conventions would be outrageous as they would be clear violations. But these people aren’t protected by the Conventions. It is said that techniques authorized had to “not shock the conscious”. At first blush, one might say that subjection someone to simulated drowning might shock the conscious, but then consider this: members of the press and our own service men as part of training have gone through the same procedure. If we’re willing to subject our own troops to water boarding, then perhaps it exists in a different category from “true” torture.
What, then, about trials? Are these people due their day in court? That is what the Obama administration says, but they obviously don’t mean it. Otherwise they would be attempting to arrest terrorists on the battlefield, but they continue the Bush administration practice of drone attacks. If terrorists were to be treated as criminals like gang members, one would wonder why we launch Hellfires at Al-Qeada but not the Bloods and Crips. This opaque policy on whether or not terrorists are to be treated as criminals actually creates a moral dilemma – why capture a terrorist when they will be granted Miranda rights and a trial that will last a year, with the possibility of returning to be battlefield, when killing them is an acceptable outcome? In fact, the objections of the left actually create an incentive for battlefield executions.
Additionally, one asks, under who’s law do we try these terrorists? Do we try a terrorist captured in Afghanistan under American law? Does that mean that American law extends to all countries on the globe? Do we try them under local laws? Where are they imprisoned?
The Bush administration had to deal with all of these questions, and came up with military tribunals. These are not courts of law, but rather review boards to determine the nature and threat of the people held. It was this concept that was used during WWII to deal with German saboteurs that had been captured. The nature of these boards are honest: they exist to protect the interests of the United States.
What the Obama administration is doing is not protecting the rule of law but rather undermining it. On the one hand, they are patting themselves on the back for putting KSM on trial and giving the Underwear Bomber Miranda rights, but at the same time declaring a predetermined outcome for the KSM trial. What is the point of a trial, and more importantly, how is it anything but a show trial, if the outcome is predetermined?
It strikes me that the Obama administration is discovering that attempting to implement their campaign rhetoric is causing a great number of real-world problems. I hope they change course and own up to their mistakes before too much damage is done.
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on January 31st, 2010 at 10:58 pm
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