Abyss Gazes Also
By Noel O'Connor
that would make his own liberty secure must guard even his
enemy from oppression; for if he violates this duty he establishes
a precedent that will reach to himself." - Thomas Paine
Browsing the AM dial the other day, I happened on another
of the seemingly ubiquitous right-wing call-in shows which
dominate that particular medium these days. The news item
being discussed was the deaths of several American troops
in the current actions in Afghanistan, including the killing
on the ground of one soldier, apparently fallen from his transport
helicopter and summarily shot. Callers understandably voiced
their outrage and grief at this callous act. Comparisons were
made with the memories of those horrific scenes in Somalia
nine years ago, when American bodies were dragged through
the streets of Mogadishu.
But the clincher for me came when one caller brought up the
"detainees" in Guantanamo Bay. In his considered opinion,
the murder of this soldier should amply demonstrate that any
carping about the conditions in Camp X-Ray was bleeding heart
liberal claptrap. In fact, he reasoned, this proved that the
correct treatment for these prisoners would be one in kind
- namely a well placed bullet each. Other callers - and the
host - emphatically agreed.
Now, this line of thought is one that I have heard in various
forms quite extensively. A similar thrust is used any time
someone makes a case advocating better prison conditions or
more drug treatment programs - or when someone argues against
the death penalty. The central theme is one of "why should
they get better/more humane treatment, considering what they
do/did, etc.," an argument that serves to polarize the debate
into one between hawks and doves - those who feel that certain
behavior justifies harsh punishment, and those who don't.
In the case of sentencing or capital punishment for convicted
criminals, this is an argument that can span an enormous range
of viewpoints, and in itself explains the extraordinary complexity
of any system that makes a claim to fairness or justice.
Humans are vastly complicated creatures, and as such, harbor
equally complicated motivations. The scope of crime and criminality,
like any other human endeavour, does not always separate out
neatly into black and white. Like our characters themselves,
our actions scatter across the spectrum of right and wrong
in varying shades of gray.
We instinctively realize that jaywalking does not reside
on the same part of the scale as rape - we make distinctions
between murder and what we feel constitutes justification
for killing, such as self defence (or, in France, a crime
of passion). We recognize the inherent subjectiveness of the
law itself by maintaining it as a living, breathing part of
our society, open to challenge and amendment. Laws evolve
and mutate with the growing of society, or face becoming entrenched
doctrine that can restrict our progress.
Yet, leaving that aside, in the case of the Guantanamo prisoners,
there are disturbing problems. The conditions and treatment
of these men does not fall into these arguments of just or
unjust punishment. These men have not been tried and convicted
in our judicial system. They have not yet faced charges within
our system. This is because they are considered outside of
our system. The Bush administration has made clear it's intentions
not to try them within the US courts, but rather within a
constructed entity of quasi-military jurisdiction, if they
are tried at all.
The decision to hold the prisoners in Cuba, rather than mainland
USA - the legally meaningless label of "detainee" - both illustrate
the concerted effort by the administration to distance the
prisoners from the concept of ordinary criminal justice.
For the gentleman on AM radio, so far so good. And many would
agree. The problem, of course, is this - if not designated
as criminals by our justice system, then these men must fall
under the jurisdiction of the Geneva Conventions. Although
lacking the official Act of Congress, the United States has
consistently claimed that it's current position - including
the actions in Afghanistan - is one of war. War is not a eye-catching
graphic on cable news, or a gritty phrase for a speech - it
is a specific position. It places the warring party or parties
within the rules and authority of the international community.
As difficult as it is to believe at times, war has rules.
War has it's own strictures and limitations. War has laws.
This is not some semantic piddling or trivial legalising.
The civilized nations of the world, recognizing that sometimes
war is an extension of diplomacy, decided to place mutually
restricting parameters on it. A shared sense of abhorrence
for the horrors of civilian genocide, ethnic cleansing and
state sanctioned terror inspired cooperation. Constraints
on the treatment of civilians, wounded and sick members of
the armed forces, and, of course, prisoners of war, were agreed
upon. Two protocols concerning victims of international and
domestic armed conflicts were added in the late seventies.
The articles dealing with prisoners of war are detailed, complete
and specific. Nowhere does the designation of "detainee" appear.
Now, many people will quite readily argue, I'm sure, that
the treatment meted out to the men at Guantanamo does not
violate the Geneva Conventions in any way. Personally, I would
argue that it most certainly could be construed otherwise.
Unfortunately, those people miss the point.
The conditions at Guantanamo are not at issue. Not since
the Bush administration tipped it's hand with the very phrase,
"detainee." You see, by trying to create their own classification
for these men, the United States declared to the world that
it considered them exempt from the protections proffered to
"prisoners of war" by the Convention. The goverment forged
a brand new term, quite unilaterally, and slapped it on the
foreheads of the guys in jumpsuits. We categorically stated
that they were NOT prisoners of war.
The only problem with that is - we have absolutely no right
to do so. The Geneva Convention does not contain any provision
pertaining to our right to opt out when see fit. Even if the
"detainees" in Guantanamo were being fed caviar and quaffing
champagne, it is not possible to deny them their classification
under international law. As Article 2 of the Convention Pertaining
to Prisoners of War states:
"In addition to the provisions which shall be implemented
in peace time, the present Convention shall apply to all cases
of declared war or of any other armed conflict which may arise
between two or more of the High Contracting Parties, even
if the state of war is not recognized by one of them."
And in Article 4:
"A. 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: 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
So what, you might say? Who says we can't change the rules
if we want to? Well, that's exactly what we've told the world.
And the damage from that is more than just the ethical handwringing
of another progressive peacenik. We have undermined the foundations
of the most fundamental international agreement in history.
We have shown, once again, that our committment to the most
basic treaties is entirely at our own convenience. We have
given the rest of the world reason to distrust our word. We
have demonstrated our flimsy regard for the rule of law and
in so doing have stripped our own soldiers of their legitimate
claim to the same regard from others.
Some will argue, once again, that the character of the people
we are fighting excuses our recent lapses from the higher
moral ground. They will trot out the increasingly cliched
observation that "this war is different."
I respectfully demur.
Like the rights described by the Constitution, the rights
guaranteed by the Geneva Convention are fundamental. They
do not belong to the arbitrary, organic laws that we scribble
and rewrite for our domestic justice system, sometimes blowing
with the wind of public opinion. They are bedrock principles,
hacked out the raw stone of human decency and common good,
and paid for dearly in the blood of our forefathers. Like
the Constitution, to abandon them in order to protect ourselves
is a contradiction in terms. If we climb down into the abyss
to defeat our foe, what exactly are we defending?