Osama in Genevaland: Giving Legal Rights To Terrorists
Terrorists are now getting lawful-combatant legitimacy.
So writes today’s Wall Street Journal editorial.
Highlights:
“The Geneva Conventions of 1949 govern the treatment of lawful combatants and civilians during wartime. But now a new Pentagon memorandum concludes that Common Article 3 of the Conventions also governs the treatment of unlawful combatants: pirates, drug mafias and especially terrorists. So, five years after 9/11, the U.S. is about to give to people who ram commercial jets into buildings many of the same legal privileges and immunities as the average GI.
How did we get to this Osama in Genevaland world? Credit belongs to last week’s Hamdan Supreme Court decision, and to Pentagon officials who have overinterpreted the meaning of that decision. Deputy Secretary of Defense Gordon England signed the memo, and our sources tell us it was issued without any wide deliberation with, or even particular awareness by, the White House Counsel’s office or the Justice Department. (A White House spokesman didn’t respond to our query.)
“In practice, this means that a captured terrorist such as September 11 mastermind Khalid Sheikh Mohammed is now protected by Common Article 3. People often associate the Geneva Conventions with guarantees against torture, protection for the wounded and the sick, and other “bare minimum” humanitarian standards. But Common Article 3 goes considerably further, forbidding, for example, “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
What exactly constitutes personal dignity and outrages upon it? Who knows, though we bet the ACLU will be more than happy to supply some answers. Our guess is that the concept can be read so expansively as to forbid the U.S. from so much as shouting at captured al Qaeda suspects, never mind “waterboarding” them, as was reportedly done to break KSM. In a war in which actionable intelligence acquired from captives is crucial to uncovering terrorist plots and preventing future attacks, it’s hard to imagine a greater self-inflicted setback to counterterror efforts.
“Believe it or not, Congress can still fix this royal mess by following the Supreme Court’s Hamdan order to write a new set of procedures and rules for handling unlawful combatants. And Congress can and should say that it is these new rules, not Geneva Common Article 3, that is the controlling law in America. The Pentagon may have surrendered prematurely to legal generals, but that doesn’t mean the American people want to.
Read the full story.