The Abyss Gazes Also
March 9, 2002
By Noel O'Connor

"He 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 forces."

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?