The Pentagon and Geneva: Terrorists pick up a major win

posted at 6:01 pm on July 11, 2006 by Bryan

Detainees at Guantanamo get halal meals, a place to sleep, a prayer rug, their own copy of the Koran and most of them get some limited recreation time. They are, in other words, treated far more humanely than they will ever treat anyone else. They behead and mutilate anyone they capture.

Among those detained at Gitmo have been Khalid Sheikh Mohammed, mastermind of the massacre on 9-11 and (thanks to aggressive interrogation) the man who fingered American terrorist Adam Gadahn; and Abu Zubaydah, who among other things dispatched US citizen Jose Padilla on a mission to Chicago to scout for a dirty bomb attack and to orchestrate a series of explosions in apartment buildings around that city. Had Padilla succeeded, yesterday’s explosion in New York would have been carried out and magnified times 10 in Chicago. And it would have been followed up by a bomb attack using radiological materials, possibly dwarfing the death toll on 9-11 itself. If KSM and Zubaydah were not in Gitmo, these terrorists would be planning and plotting more attacks just like the ones that have worked and the ones that their incarceration stopped.

Apparently most of the entire world has forgotten just who is in Gitmo, how they got there and how we have actually treated them. Other than subjecting a few of them to aggressive interrogation techniques that fall far below any reasonable definition of torture, we have treated them well. We have treated them in accordance with the Geneva Conventions in relation to their standing as illegal combatants as defined by the Conventions. Actually, we have treated them better than the Conventions mandate, since under the definitions we could have considered every single member of al Qaeda a spy caught out of uniform and shot on the spot of capture.

We could have done that, but if we had we would have lost a great deal of intelligence that was gained through interrogations. But all that’s over now. In the wake of the Hamdan decision–a decision in which the US Supreme Court inserted itself into the executive branch’s wartime authority–the Pentagon is announcing that all of the detainees will get Article 3 treatment. Allah has posted on some of the legal implications. Bottom line: this will have profound implications on the future conduct of the war. Among other things, it will end useful intelligence-gathering from captured terrorists and may mean scrapping military tribunals, granting captured terrorist access to our civilian courts:

Concerning a replacement for the tribunals, Mr. Snow said the administration intended to work with Congress to devise a system of justice for terror suspects, as the court had required. At a hearing of the Senate Judiciary Committee, Steven Bradbury, a Justice Department official, laid out the administration’s case for making changes to the system of military tribunals rather than scrapping them altogether.

“All the issues with military commissions identified by the Supreme Court can be addressed and resolved through legislation,’’ Mr. Bradbury said.

Mr. Bradbury said that traditional military courts offered such strong protections to defendants as to make them worthless in the fight against terrorism. Soldiers coming upon suspected Al Qaeda members on a battlefield in Afghanistan would have to immediately inform them of their Miranda rights, and cease questioning if they requested a lawyer, he said.

“You’re not going to get much out of them at that point,’’ Mr. Bradbury said.

Senator Orrin Hatch, a Utah Republican, responded that such a requirement “could make the difference between whether thousands die or not.’’

In practical terms, this means we will capture fewer terrorists, or at least that we should capture fewer of them. The point of capturing them up to now has been the possibility of gathering intelligence on terrorist operations and future attacks from those captured. In the wake of Hamdan and granting all captured terrorists Article 3 rights, what is the point of capturing any terrorist now? If the intelligence value goes away, and it very much has, and if once captured, terrorists are allowed trials in which sensitive wartime data will be released in open court, the value of trying them become nil, and as captured enemy combatants they become an albatross. Why try to get a 15-year sentence for a terrorist when the cost is exposing so much intelligence that still has wartime value? That’s not a sensible trade-off. So we won’t capture them. We’ll either kill them on the spot or let them go–a terrorist catch-and-release program.

Andrew Sullivan and his ilk can crow about this change all they want to, but the bottom line that in the name of misreading and misinterpreting a bunch of rules drafted long before the idea of transnational terrorism equipped with WMDs was even conceived, we have now chosen to throw down one of the most important weapons available to us: intelligence gleaned from captured terrorists. People will die because of this decision, for the simple reason that we will no longer ask captured terrorists what they know and who they’re working with. We have made ourselves like a giant battling a swarm of poisonous hornets, but the giant has chosen to gouge his own eyes out and stuff his ears with cotton as he goes into the battle.

How does a country win a war when it has systematically stripped itself of its clandestine tools and publicly thrown off nearly all of its other ones? How does a country win a war when its top warrior breaks down like a baby in public when talking about his family history? How does a country win a war when it lacks a single leader who’s willing to look the enemy in the eye and do whatever it takes to defeat that enemy?

I have no idea.

But I do know that litigating this war and granting rights to mass murderers won’t get us there.

Update: Macsmind takes a much more positive look at this than I do. This is one of those times I’d rather be wrong than right, but watching the way the administration and Pentagon keep caving on so many things, I just doubt that Bush and Co have much fight left in them. But I could be wrong, and I hope that I am.

Update: Mark Levin sees things the way I do.

CORRECTION: After further review, Khalid Sheik Mohammed and Abu Zubaydah were probably not at Gitmo during their incarceration with US forces. The case for putting Zubaydah there is a little stronger than for Mohammed, but not by much. So I probably got that wrong in the article above. The two were aggressively interrogated at other locations, and have given up a great deal of useful intelligence that has led to stopping al Qaeda attacks and arresting other terrorist figures.

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Groan ….. Gotta reset my grey matter after this.

darwin on July 11, 2006 at 6:04 PM

Sigh. I really can’t handle the epidemic insanity.

Aunt B on July 11, 2006 at 6:49 PM

So we won’t capture them. We’ll either kill them on the spot or let them go–a terrorist catch-and-release program.

I vote for option #1.

Seriously, great post. Even taking option #1 above, we potentially lose valuable intelligence information, and are thus screwed either way.

This is what happens when victory is subordinated to other considerations, such as the vanity of needing to be seen as morally superior than the enemy we are fighting. If you think about it, subordinating victory to that, or any consideration, is absolute insanity.

In the past, the U.S. has done terrible things in wartime, yet among those capable of rational thinking, there is no doubt whether such things were justified. Now our leaders don’t even have the testicular fortitude to stand up to their critics and treat terrorists the way they should be treated, even when considering the scope of the Geneva convention (under which terrorists are most definitely NOT covered).

The WH is now surrendring itself to the dictates of an allegedly co-equal branch of government; one that thinks it is just a bit more equal than the others and is beyond the reach of accountability. It’s official. ‘W’ is for ‘wimp’.

thirteen28 on July 11, 2006 at 7:04 PM

As I’ve already said on a dead thread:

We’ve lost.

ScottG on July 11, 2006 at 7:16 PM

Bryan, you and Allahpundit seem to know alot more about this than I do, and I’m not trying to be sarcastic either. However, wouldn’t one way to solve the mess of having to deal with reading these guys their rights on the field of battle and all of that nonsense be to simply grant them full POW status? I wrote about this on AP’s earlier thread called “Skimming Hamden” so if you don’t mind, I’m going to just cut and paste it here. (If this is not cool of me, of course feel free to delete it)

SCOTUS said:

It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm.

Allahpundit said:

If Bush dispensed with tribunals altogether and ordered the Gitmo gang held without trial for the duration of the WoT as prisoners of war, arguably that would be constitutional.

Well said, Allahpundit. For what it’s worth, I have always been very uncomfortable with the attempt to classify the terrorist we capture during the GWOT as anything other than prisoners of war, with all of the protections that entails. I also believe (or suspect, as I can’t prove this) that the reason we went ahead with this desire to say they weren’t subject to the Geneva conventions was basically, because we were so pissed at them. And rightly so. They are the scum of the earth and it grates on our nerves to give put them in the category of “Prisoner of War.” It grates on my nerves too. But look at what we have given up and what our position has cost us.

Prisoners of war are prisoners not because they have committed a crime, but because they have been captured during a time of conflict. You don’t need evidence or warrants. No lawyer is involved at any time. You are simply held until such time as a surrender or peace treaty is signed. Then you are released.

It is true, as a POW, you are supposed to be handled with kid gloves during any interrogations. And given food and shelter commensurate with what the captor’s troops of equivalent rank receive. And yeah, I know about the monthly stipend in Swiss franks they are supposed to get for commissary privileges. And the athletic opportunities, and the “scientific instruments”. Yeah, all of that. It grates to think that some terrorist is entitled to all of that.

But what happens if we had sucked it up and said that we were going to treat these people as POWs with all of those protections?

First, we eliminate 95% of all of the ACLU style abuse. All of the “torture, torture, torture” bleating is taken away. All of this horrible fighting and debate about how to try them, what is there status, the Gitmo is a “legal black hole”, simply goes away. But so does all the pressure to “Charge these men or release them.” No. They are simply prisoners of war, and until such time as al Qaeda signs a peace treaty with us, we simply hold them. As POWs.

Now the issue of war crimes and what-not comes up. So how should we have handled that? Well, let’s see what is supposed to happen, and has happened in real life. Let’s go use a WWII scenario. Let’s say a prisoner is captured in battle. He is a POW. But it is then discovered that he had hollow point ammunition, which is a violation of the laws of war. Well, he is still a POW. But he is then tried by the capturing powers legal system (military system or civilian, I’m not sure about this detail) for the crime of having and / or using hollow point ammunition. Let’s assume he is convicted and sentenced to 1 year of prison. What happens? Well, he might do this one year in the same military POW camp, but segregated from his fellow POWs. He may be placed in a civilian prison. What happens if he finishes his sentence? Well, if the two countries are still at war, he goes right back to the POW camp. He isn’t released to the world. He is still confined until such time as a peace treaty is signed.

So it would go with our al-Qaeda prisoners. We captured them. Give them immediate full POW status. Now we can hold them as long as we need to, with almost no legal issues. If with some of them we have evidence and can prove that they are guilty of some sort of war crime, charge them with it and offer them all of the legal protections they are entitled to under the Geneva Convention. And then don’t sweat it if the conviction falls through because of some legal issue or some chain of custody issue makes certain evidence inadmissible. If they beat the rap, so what? They go right back to the POW camp and stay there until such time as we sign a peace treaty with al-Qaeda.

Now the question of interrogations comes up. It is true, we loose a lot of our ability to use some effective interrogation techniques if they run afoul of Article 3,

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

OK, this is a bummer, but is there anyway around it? Perhaps. First, once we and they know that these guys aren’t going anywhere, and they are in this for the LOOOOONG haul, we can use whatever techniques we are allowed for as long as we want. Even gentle interrogation, over the long haul, will probably break down some of these guys. And if we can’t break them, perhaps trick them. Use guile. Is there anything in Geneva convention that forbids guile and trickery? I honestly don’t know. Also, if these guys know that they are going to be here for the long haul, perhaps this will sap some of their will to resist. After all, if the international civil rights organizations are continually harping about how they should be released, they can hope to hang on and beat us. But if they know they ain’t going anywhere, well their defiance may fade somewhat.

Two. As POW’s they are supposed to be handled with kid gloves. Yeah, it sucks, but there it is. But what about when they do crimes and offences as POWs? We all hear about how they are throwing piss and shit on the guards in Gitmo. I will guarantee you that NOTHING in the Geneva convention allows POWs to do that to their guards. The Geneva convention allows POWs to be prosecuted for crimes they commit while POWs, which includes throwing piss and shit on guards. That would be assault. So now the question is, what sort of interrogations are you allowed to do to a POW who is now being dealt with for a criminal offense? I honestly don’t know, as I am not a lawyer, but I suspect it is a little more vigorous. What I am getting at is when they do their little shit flinging, that is our opportunity to bring a hammer down on them. Charge them with assault. Bring a full-court intensive, in your face, interrogation down on them. Sentence them to 6 months of brig time. Which could be a 5 foot by 5 foot cell with only a one hour exercise break. No chicken with falafel beans and dates and mangos. Standard prison slop. After a couple of months of this, with some aggressive questioning, perhaps our little jihadist will be more willing to talk and or roll over on some of his pals.

The international community and the likes of Andrew Sullivan have been pile-driving us the whole time about “loosing the moral high ground.” Well, for one, giving these al-Qaeda clowns that POW status stops all that yapping. But, and I hope I have made myself clear on this, giving them POW status also gives us a lot more freedom from all of this legal crap and what not. So instead of having to have this turn into a freakin’ constitutional crisis with armies of lawyers and leftist activists filing lawsuit after lawsuit, we might have had a briefing more along this line:

Amnesty International Rep:“When are you going to charge these poor detainees?”

Captain Jones, lowest ranking JAG lawyer in the Pentagon: Actually, never. They aren’t being held as criminals, but as POWs. They’ll be released right after we sign that peace treaty with al-Qaeda. Should happen any minute now….

A.I.: “You have violated their rights by holding them without counsel! They must have counsel! They must have access to the Federal Courts!”

CPT Jones: Really? Actually, no. The Geneva convention doesn’t say a POW gets a lawyer just because he was captured as a POW.

A.I.: “You haven’t followed any of the rules of evidence! You haven’t read him his rights! You haven’t…”

CPT Jones: Quite right. We haven’t. But, we did capture him on the field of battle with an AK-47 shooting at us, so we immediately captured him and gave him full POW status, with all of the rights and obligations that entails. And I just want to reiterate, because you seem to be missing it, we aren’t charging him with any war crimes. Hence, no attorneys. Well, this concludes first and last briefing about the legal status of our al Qaeda POWs. Thank you and please exit to the rear.

Basically, that is why I think we should have given these clowns full POW status from the start. Not because I am some terrorist sympathizer. Not because they “are human beings who deserve to be treated with respect.” But because I think it is advantageous to our team. It gives us a lot more flexibility. And it takes a lot less resources and legal talent to hold them. Just my two cents.

By the way, I had no idea that Allahpundit is an ex-attorney…

EFG on June 29, 2006 at 8:45 PM

If the above theory of mine in someway would be harmful to our country and our war on terror, I would like to hear about it, because like I said earlier, I’m not a lawyer or expert in international law or military intelligence and interogation, so I could be wrong. Thoughts?

EFG on July 11, 2006 at 8:25 PM

Just be-head me now! Good grief.

Joe on July 11, 2006 at 11:15 PM

How does a country win a war when it has systematically stripped itself of its clandestine tools and publicly thrown off nearly all of its other ones?

How does anyone win a “war” against a concept that considers itself spawned by the fighting of it? Terrorism isn’t a new concept and it’s not about go away, especially now that people are “won” to its cause as a result of our fighting it. Now, that’s absolutely not to say that we shouldn’t fight it, but we should definitely be honest with ourselves about setting realistic goals.

How does a country win a war when it lacks a single leader who’s willing to look the enemy in the eye and do whatever it takes to defeat that enemy?

What if it takes our freedom? What if the only way to keep terrorism in check enough for you to consider it “defeated” is to flush our Constitutional protections down the drain? “Whatever it takes” makes for a nice emotional rallying cry, but when the nuts and bolts of “whatever it takes” are revealed, don’t be surprised if some people would rather take the terrorism.

We’re granting rights to people dead set on destroying ours. In other words, we’re fools.

Oh come on, they’re not attacking our rights, they’re attacking our safety. Our rights are being attacked from within, in response to their attacks on our safety. I guess you could say that they’re attacking our freedom by proxy, but I don’t think that’s what you meant. And it’s certainly not what they intend.

And while I share your concern that traditional military response isn’t the most effective approach for this enemy, and nor is a strictly law-enforcement approach, the answer isn’t to give carte blanche to the military and the Administration to do what they will. Frankly, that’s the kind of thinking that leads to a police state, often with initial popular support to boot.

The Bush Administration has become far too fond of knocking square pegs into round holes and leaving the Supreme Court and the New York Times to make sense of the damage, once an internal whistleblower decides that enough is enough. That should be a bit of a red flag, that the objections and concerns are coming from within. If the Administration needs a tool it lacks, it should seek that tool through the appropriate (checked and balanced) channels. Have Congress write it up, and have courts scrutinize it. America wasn’t set up to have “a single leader” who calls all the shots, and with good reason.

Sidebar about hornets: cotton in your ears might not be such a bad idea… you have no idea how much a sting in your ear canal hurts.

Mark Jaquith on July 12, 2006 at 7:06 AM

Bryan said: In the wake of Hamdan and granting all captured terrorists Article 3 rights, what is the point of capturing any terrorist now?

I have a feeling our boys (and girls) in the field are going to start shooting first and asking questions later, which totally flies in the face of what the ACLU etal intended.

pullingmyhairout on July 12, 2006 at 9:58 AM

Oh come on, they’re not attacking our rights, they’re attacking our safety.

I’m sorry, you’re wrong, so very wrong.

Compare “rights” under our Constitution and “rights” under Sharia. Nowhere near comparable. Sharia is the Devil’s law, our Constitution is based on God given rights.

Thinking like yours is the main problem we have with winning, if we still are able to win. This struggle isn’t a “safety issue.” It’s a battle between good and evil.

ScottG on July 12, 2006 at 2:14 PM

Tocqueville was right: “America is great because she is good. If America ceases to be good, America will cease to be great”.

Is it difficult to maintain our values and defend ourselves against terrorists? Absolutely. Is it essential to our continued prosperity and greatness? Absolutely. Nothing worth having is easy. If it’s a battle between good and evil, then let’s not be afraid of being good.

honora on July 12, 2006 at 3:49 PM

Compare “rights” under our Constitution and “rights” under Sharia. Nowhere near comparable. Sharia is the Devil’s law, our Constitution is based on God given rights.

So? Islamic terrorists aren’t trying to get our Constitution changed, they’re trying to kill us and hurt us.

Thinking like yours is the main problem we have with winning, if we still are able to win. This struggle isn’t a “safety issue.” It’s a battle between good and evil.

We can’t “win” in the traditional sense. A war against terrorism with total defeat as the goal will be a perpetual war. Terrorists are not a threat on the same level as the Japanese during World War II. Terrorists don’t have a hostile takeover of our country as an objective, and they’re far too few in number to achieve it even if it were. Yeah, it’s sad that people die in terrorist attacks, but that doesn’t make it an attack on our freedom.

Mark Jaquith on July 13, 2006 at 3:10 PM