Quick Summary:
•    Uses the Geneva Convention to highlight why former President Bush is not a War Criminal.
•    Discusses the implications of coercive interrogation and government power and presents a possible compromise for the issue.

Since the images of the Abu Ghraib abuses were released, followed by the news of the CIA’s secret prisons and its enhanced interrogation techniques, there has been a fierce debate over the legality of the various measures involved. Republicans and Conservatives generally favor the techniques and insist that the stated but yet unproven benefits of the programs justified the questionable means used to achieve them. Democrats and Liberals insist that no matter what the benefit, such techniques are never justified. Some on the ultra left have gone further, calling for the persecution of the Bush Administration, partly as a response to the scandal and largely as a parting shot at an administration that they bitterly despised.

On April 19, 2009 President Obama’s Chief of Staff Rahm Emanuel made a statement to ABC news that finally seemed close this controversial chapter of our nation’s history. Mr. Emanuel stated very clearly that “those who devised the policy [of Enhanced Interrogation] should not be prosecuted.” Only two days later, however, President Obama said that he didn’t “want to prejudge” the issue and that the decision to prosecute “is going to be more of a decision for the attorney general within the parameters of various laws.”

When the furor over enhanced interrogation erupted anew following the President’s flip-flop, I started to pay closer attention to the content of the debate as opposed to its tenor. What I found was quite shocking. While both sides obviously are very passionate about the underlying implications of torture (save opportunists like Speaker Pelosi & Co.), facts are few and far between. The left bandies about vague references to the Geneva Conventions while the Republicans push out endless sound bites about keeping Americans safe.

What legal ground does the Bush Administration have to stand on and how strong is the case against it? Furthermore, is water boarding torture? Is there an objective standard for torture beyond people’s personal sensibilities?

I’ll start with the legal issues. After a little research, I determined that the war crimes accusations revolve around the claim that Bush violated the United States War Crimes Act of 1996. According to this act, a war crime is a “grave break of the Geneva Conventions,” and the penalty for the perpetrator is life imprisonment or death.

To properly understand the full definition of a “grave breach,” however, one must read the Geneva Convention. This is where I discovered a shocking and widespread misunderstanding of the facts underlying the issue. If columnists and commentators were to read the actual convention, they would find that the first part of the Convention specifically defines when, where, and to whom the provisions of the document apply to. Despite what media reports might have you believe, the document does not apply to any person anywhere in the world. 

Part 1, Article 4 is the most applicable section as it deals with Prisoners of War, the very issue at the heart of the Bush Administration’s controversy. The entirety of the argument against President Bush (except for the few dreamers who believe war can be conducted without collateral damage) is that his Administration’s treatment of the some prisoners of war, such as the water boarding of Abu Zubdaydah and two others, amounts violations of the Geneva Convention and thus war crimes.
For this to be true, both under the Geneva Conventions and the War Crimes Act of 1996, Abu Zubdaydah and his co-conspirators must satisfy the conditions set forth in the Geneva Convention for a person to be recognized as a prisoner of war deserving of the protection of international law. If the prisoners if Guantanamo meet the Geneva Convention’s litmus test, then the Bush administration’s treatment of them must also violate protections set forth for Prisoners of War in order for its conduct to be criminal.  According to the convention, Prisoners of war are:

1.    Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

Uh oh. Well it looks like Bush & Co. should go straight to prison, not pass go, and take a ride in the gas chamber. Unfortunately for diehard left-wingers, the term armed forces, in the historical context of the day, refers to uniformed soldiers and adjunct, uniformed militias. This nuance is made even clearer by the next definition, which sets additional conditions for:

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.

This provision, provision 2 of Part 1, Article 4, clearly defines the conditions that “resistance” movements not part of traditional, uniformed armed forces must meet in order for the terms of the Geneva Convention to apply to them. First, they must report to a responsible commander, something that could easily be contested of most insurgent and terrorist forces.

 Secondly, they must have a fixed distinctive sign recognizable at a distance. This requirement is never met. Terrorists, or insurgents as our media prefers to call them, do not wear distinctive uniforms and prefer to operate in civilian clothes among the civilian population so as to maximize publicity generating collateral damage. 
Next, these resistance movements must carry arms openly. Again, this condition is openly flaunted. Suicide bombers wear their “weapons,” if they can be called such, underneath civilian clothes, hidden from view. Insurgents hide their weapons in schools and tunnels.

Finally, these resistance fighters must respect the customs of war, which, for the purposes of this short piece, we can consider to be conduct laid out during the Geneva Convention. That means that resistance fighters must not take civilian hostages, they must refrain from public exhibition of killings, they must tend to the sick and wounded, and the list goes on. The only condition that the average “insurgent” might meet is the condition that a commander responsible for subordinates commands him.

So, according to the Geneva Convention and, by extension, the War Crimes Act of 1996, almost every prisoner captured (and in all likelihood, all prisoners from Afghanistan and Iraq) is not technically a Prisoner of War as the Geneva Convention defined the term and thus is exempt from the protections of the document.
Now that the legality of the techniques is out of the way, it’s time to discuss the interrogation techniques themselves. I believe that President Bush and his advisors truly had the people of the United States in mind when they green lighted the enhanced interrogation. I am willing to conceded that the techniques probably produced useful information, but neither I nor anybody else can verify that information unless that CIA were to declassify the relevant documents.

What is difficult to do, however, is deny that water boarding is harmless. It first rose to infamy during the Spanish Inquisition. Overzealously applied, it can cause permanent physical harm and even death. In the early 20th century, Americans were appalled to find that American soldiers had been water boarding Filipino guerillas and the public consensus was that this technique, if it was not torture, was morally abhorrent. I believe that holds true today and the legality of the circumstances does not excuse the morality of the act.

I am a firm believe in small government and I believe that a government that has to go to such lengths to protect itself and the people it represents must have gone wrong somewhere. Furthermore, I fear what such techniques could be used for in the wrong hands. Do not forget the case of Jose Padilla, an American citizen who President Bush designated an “enemy combatant” on June 9, 2002 (don’t get too excited left-wingers, Franklin D. Roosevelt’s administration is responsible for that term). By doing so, President Bush effectively declared Padilla a party to a conflict who does not follow international rules of conduct nor clearly identifies himself as a belligerent. Using the arguments I have just set out, Mr. Padilla is not entitled to protection under the Geneva Convention and could have been water boarded, abused, or worse without any significant violation of the law. The key to the legality, however, is whether provided the government indeed has the power to declare someone an enemy combatant. While the distinction between a criminal and an enemy combatant may seem clear cut now, I urge you to look beyond the short-term ramifications of this power and the accompanying technique of enhanced interrogation.

When you consider the danger of government power, do not look at what something was intended to do. Instead, look at what it could be used for and what similar provisions have been used for in history. What if a radical group came to power in the United States only to flagrantly violate the Constitution, declaring all those who opposed the new regime “enemy combatants?” I believe in the free exchange of ideas and the mutual respect required for that to take place. The possibility of using government power to forcibly censor or silence such a debate is a chilling prospect and I do not believe the government should be allowed the power to potentially do so.

The logical way out of this debacle, if all parties are genuine in their claims, is to thank President Bush for his service to this nation and then legislate away the government’s ability to use enhanced interrogation regardless of the circumstances. For some, Enhanced Interrogation may be a stain on our national honor, but the simple fact is that the program obeys the letter of international law. If we feel that we are above such techniques, we should ban them and be willing to live with the potential security consequences.  Prosecuting our former President for his honest attempts to protect his people or forming partisan truth commissions will not heal our wound nor mend our image. The way forward is through a constructive and open-minded look at where we’ve been and where we want to go. Here’s to a brighter future. 

-Madas

Sources:

http://blogs.abcnews.com/george/2009/04/obama-adminis-1.html
http://www.foxnews.com/politics/first100days/2009/04/21/obama-open-prosecution-officials-cleared-interrogation-tactics/
http://www.unhchr.ch/html/menu3/b/91.htm
http://www.sourcewatch.org/index.php?title=Jose_Padilla