I agree completely with what both Dale Franks and Jon Henke, both of QandO Blog, write on the subject of the torture and abuse of prisoners held in Iraq, Afghanistan, and Guantanamo. I agree with Dale Franks particularly when he writes:
My preferred method of dealing with these terror prisoners would be to get two captains and a major together as a tribunal, declare them to be unlawful combatants, and put them in front of a firing squad. Now, maybe, because we’re nice guys, we could let them know that if any of them give us verifiable, useful information, then we’ll commute their sentences, and won’t shoot them. Otherwise, however, it’s a blindfold and a last cigarette for the lot of ’em.
That’s been my position from the start. And I completely agree with Jon Henke’s summary of his position:
That’s just about where I stand: full transparency and due process, followed by 1) release, 2) a prison cell and POW status, or 3) an execution.
But the current state of affairs, with undeniable widespread abuse, torture and murder—either ordered, tacitly condoned, or at least not stopped, by the chain of command—is simply unacceptable. It deserves bipartisan outrage, especially from those of us who support the Bush administration’s execution of the War on Terror. For if we cannot stand against torture and murder, then what do we stand for at all?
I also have a few observations of my own to offer. First, these abuses are inevitable. As we have learned from the Stanford prison experiment the very circumstances will lead to abuse. This should in no way be taken to mean that I condone or excuse torture. Inevitability does not mean either acceptance or desireability.
Quite to the contrary one of the many reasons that I believed a sharp, harsh but above all brief response to the attack on September 11, 2001 was to be preferred is that in every protracted military conflict in which the United States has engaged measures that were considered repugnant or unthinkable at the beginning of the conflict eventually became casually accepted or even enthusiastically embraced.
My second point is that I believe that the ticking bomb, ends justify the means, exigent circumstances argument in favor of torture is claptrap whether supported by due process (as Alan Dershowitz has argued) or otherwise. Every bona fide expert on military interrogation I’ve ever read or heard interviewed has claimed 1) that the only effective method of military interrogation is to befriend the detainee; 2) that intelligence received under torture is unreliable. If I’m mistaken on this I would very much appreciate being educated on it.
Third, the idea that we can still get any actionable intelligence from the prisoners taken in Afghanistan being detained in Guantanamo is absurd. They were mostly grunts with little actual information to begin with and obviously whatever they had has a finite shelf life. Most of these detainees should have been executed long ago.
My belief is that the Bush Administration doesn’t really know what to do with these detainees. They don’t want to release them to do further harm to Americans or American interests and they don’t want to take the political or diplomatic heat for executing them. So they’ll keep them prisoner indefinitely.
And that, in my opinion, will inevitably lead to abuse.
Finally, it might be instructive to look at Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War:
- Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
- 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.
- 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:
- That of being commanded by a person responsible for his subordinates;
- That of having a fixed distinctive sign recognizable at a distance;
- That of carrying arms openly;
- That of conducting their operations in accordance with the laws and customs of war.
- Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
- Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
- Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
- Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
- The following shall likewise be treated as prisoners of war under the present Convention:
- Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
- The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
- This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.
Also note Article 5 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War:
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
It should be apparent that the irregulars who have been taken prisoner are not prisoners of war—they don’t satisfy any of the requirements of the definition (most particularly irregulars who are foreign nationals i.e. neither Iraqis or Afghani in Iraq or Afghanistan respectively are not prisoners of war). They may be spies or saboteurs but most likely they are simply criminals. In strict accordance with the Convention they should be treated with humanity, tried for their crimes, and, if found guilty, treated appropriately.
But, as I’ve written previously, we should either conform scrupulously to our treaties or abrogate them.