Guantánamo and the Geneva Conventions

I've been half-following the coverage of the Supreme Court's recent rebuke to the Administration with respect to the use of military commissions to try inmates at the Guantánamo prison camp. This TomPaine.com article by Aziz Huq is especially good at examining "whether and how the Geneva Conventions apply to military commissions. The many factually and legally incorrect assertions clogging the air make it worth stepping back to understand what Geneva does, and why it matters for our success against the terrorist threat."

Among its other merits, Huq's piece describes how the 1949 Geneva Conventions were designed to prevent abuses like those inflicted by Japanese captors on American servicement, including "solitary confinement, blindfolding and stress positions such as the 'Ofuma crunch': an excruciatingly painful position that involves 'standing on the ball of your foot, knees half bent and arms extended over the head.'"

Beyond pointing up that irony, Huq effectively dispells the notion - advanced by the Wall Street Journal and other like-minded opiners - that the Supreme Court's decision puts a captured American infantryman and an imprisoned al-Qaeda fighter on the same legal footing. "A captured American soldier and an alleged al-Qaida member picked up during combat are almost certainly subject to different rules and protections, and the Court’s ruling did not change that... The al-Qaida fighter... can be tried and convicted criminally as a result of his failure to follow the laws of war. Unlike the American service member, the al-Qaida fighter is not a 'lawful' combatant under Geneva."

Rather than saying that al-Qaeda prisoners now need to be treated as POWs, the Court's decision says that al-Qaeda prisoners - or, more accurately, prisoners held at Guantanamo on suspicion of belonging to al-Qaeda - must be held in accord with Common Article 3 of the Geneva Conventions, which "precludes '[o]utrages upon personal dignity, in particular, humiliating and degrading treatment,' and also criminal trials outside of a 'regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.'"

In other words, "be civilized." Huq points out in conclusion,

Common Article 3 is especially important now because there is real doubt about whether substantial numbers of Guantánamo detainees have any connection to al-Qaida or the Taliban. Geneva tells states to take the common-sense measures of holding swift hearings on the battlefield to distinguish combatants from those swept in accidentally. But the administration decided to forego these essential procedures "to make a point—that the president can designate them all enemy combatants if he wants to." Congress and the American public are still slowly learning that Guantánamo detainees are in fact innocent of all conduct, that we have been frittering away our money, manpower and reputation not on the "worst of the worst," but on shepherds and farmers because the administration declined to sort the innocent from the guilty.

As countless commentators have already said, this is the worst aspect of the whole "war on terra" morass, even worse than Kafkaesque stories illegal abductions, useless torture, and mistaken imprisonments: every time the U.S. refuses to follow the rules it chose for itself, we lower ourselves closer to the level of the car bombers and neck slicers we're trying to defeat.