A great debate is now going on as to whether the former Administration conducted torture, and if so, whether it was intentional, and if so, whether the current Administration should prosecute former officials. I have offered my own opinion that the Obama administration will not support the prosecution of Bush Administration officials simply in order to preserve executive power, and ensure that his own people will not face something similar in the future. (See “Obama Won’t Prosecute“)

The vast majority of the statements made about this debate, whether they be on one side or the other, simply do not address the main legal point of this. Whatever you think of waterboarding, or dropping caterpillars on somebody, or anything else done at Guantanamo, it has to be understood that what we did was entirely legal according to international law and our own constitution. In addition; it did nothing to make our soldiers more likely to be tortured themselves, when captured. The only argument left against Guantanamo is the functional argument that “torture does not produce results” which is disputed by professionals, and relies on our defining the interrogation methods used at Guantanamo as “torture”.

First, there is a treaty that we signed, along with a great number of the states of the World, called the Geneva Convention. Now, as a former infantryman, I know a thing or two about the Geneva Convention, because I had to. We were told in the army, to be very careful during times of great tension, because it was better for us to be captured in a uniform than not wearing one. We were not allowed anywhere near a combat zone without a uniform on for similar reasons, and we carried a little card in our pockets to identify us as soldiers of a signatory of the Geneva Convention in order to ensure some basically humane treatment of us in case of capture.

The Geneva Convention is a very old-fashioned document, and it is also not extremely clear in many areas that we need better definition on in our current age. One way it is old fashioned is it’s definition of protected POWs. An individual captured by a belligerent power in a combat zone is a POW if and only if he is caught wearing the uniform of one of the belligerent powers. It was customary, even in the gentlemanly 19th century to hang soldiers caught outside their uniforms, or trying to sneak away in civilian clothing, as probable spies, and the Geneva Convention does not explicitly forbid this! What this means for the prisoners at Guantanamo is that if they were not caught while wearing the uniform of the Afghani (or some other state) military, they have no protections under the Geneva Convention at all. If they can be hung, they can obviously have caterpillars dropped on them.

Since we know that none of the prisoners at Guantanamo were caught in any kind of uniform; the Geneva Convention does not apply. It is also worth noting that Afghanistan under the Taliban was not even a signatory of the Geneva Convention, and explicitly repudiated the signing of this convention by a former Afghani government. As a non-signatory, even if these people had been caught with Afghani military uniforms on, their protection under the Geneva Convention would be subject to the mercy of the USA.

People against the activities conducted at Guantanamo love to talk about how we “weakened our constitutional protections” by having this program. They say that it is unconstitutional to hold people without a trial. Once again, while that last statement is correct, it does not apply to these prisoners.

Our constitution has a lot of protections built in to defend our own citizens against their own government. The document seems to have focused greatly on avoiding the possibility of the citizens of the USA ever facing someone like King George and his unchecked power over them again. Thus, it enshrines a great many freedoms for citizens, and limitations on government power. It does protect a US citizen’s right to a trial, and many other protections most states do not afford to their own people. It does not, however, offer any protection of any kind to any person who is not a citizen of the United States of America.

While the US constitution may be a good model for a universal charter of human rights; adopting it as such would require radical changes in the way most states in the World are governed. Just as one, tiny example; the World could not have applauded Israel’s handover of the Gaza Strip to Hamas because Israel would not have been able to eject it’s own citizens from homes they had lived in for forty years without compensating them for that property, and without any recourse to trial, or some other check on government power. While the US Constitution may be a good universal charter of human rights in theory, even most democratic countries in the World today could not possibly live up to it in practice. Obviously, it does not apply to the prisoners at Guantanamo because they are not US Citizens.

In only one instance did the Constitution come into this debate; that was the capture of John Walker Lindh. In this case, since he was a citizen of the USA, it applied, and he was given a trial and entered into the US judicial system as would be any other citizen. This is despite the fact that we do have treason laws on the books that could have easily applied to his case, that would have allowed measures far harsher than a conventional, civilian criminal trial. The Bush Administration was quite merciful in dealing with him. They could have found considerable precedent for handing him over to a military tribunal that would be empowered to have him hanged.

The only thing that might apply as far as protecting the “rights” of the Guantanamo prisoners is the UN charter of universal human rights. Yet this is problematic for a large number of reasons. First, the document is unclear in many areas. Second, the US did not specifically enter into a treaty to empower this particular charter, because the US us limited in the ability of it’s government to hand away sovereignty to any outside body, even the UN. This is because of our constitution, and the nature of our government. Our constitution considers handing lawmaking authority to any body outside the US Congress to be an inherent disempowerment of US citizens, since they do not vote for the members of the UN, or any other international body. Thus, most international law cannot apply inside the USA unless we amend our constitution to allow it to do so or create specific domestic law to mirror it.

Thus, we see that the Geneva Convention, and the US Constitution have no bearing on the Guantanamo prisoners, since they were not POWs under the Geneva Convention rules, nor US citizens. Whether or not what was done was torture (and I believe that it was not), it was absolutely legal, and justifiable under our current system of laws in this nation.

I will not go into an argument about what constitutes torture. I believe that this definition will probably vary by culture, since human psychology and ideas such as “humiliation” might enter into it. No matter what, I am sure that a concrete definition of what torture is precisely, will be very elusive. It will also be a moving target as the human mind continues to find new ways to torment other humans. It goes without saying that the United States is against torture, and that we do not torture, as a matter of policy, law, and morals. If some people believe that any potential psychological harm is torture; then let them shut down our public school system, because I am sure that the sort of torment we put our children through in these (failing) institutions would qualify.

I would like to point out one related thing, however. I have heard the argument repeatedly that we should not do anything that anybody else might define as torture because if we do; they might torture our military personnel when they are captured. As a former service member, I find this particular line of reasoning insulting.

The United States has never, in our history, treated captured POWs from any enemy particularly badly, nor have we ever had our POWs in any major war treated particularly well.

We treated German and Japanese POWs excellently in World War II even when we knew that our guys were being tortured, starved, and brutalized daily at the same time. We treated POWs well during the Vietnam and Korean wars, even while our own POWs were being tortured, broken, starved, hung, shot, and beaten. The worst treatment of POWs in US history that comes to mind is the cases of certain POW camps during the Civil war, but this was not the USA, but the Confederacy, which, by definition was not US; that being the point of the Confederacy. In addition, there is some limited justification for these instances, since the food supply of the entire South was dwindling with the US blockades off the coasts, and the strangling of the Southern economy. The decision was made that food should go to Confederate soldiers and civilians first, and captured Union POWs second.

Likewise, during the American revolutionary war, captured British troops endured some difficult conditions, but if you look at the way we treated our own soldiers, these conditions are actually superior to some of the privations endured by Washington’s army itself, so POWs were not treated badly in an intentional way. This, you must remember, was at a time when the British were piling up Yankee POWs into prisoner hulks off New Jersey, letting them starve to death in unlighted, claustrophobic, floating tombs, and dumping their bodies into mass graves by the thousands.

Throughout the history of the United States, we have maintained a very honorable record for our treatment of prisoners. During our whole history, we have, with one or two exceptions, usually been at war with regimes that were led by brutal monsters like Hitler, Ho Chi Minh, or Usama Bin Laden. Today, as pointed out by former Vice President Cheney, when our enemies catch our men, they cut their heads off and send us a video. These sorts of regimes and individuals do not need any sort of excuse to torture. They do it as a matter of course. Nor do they reciprocate for any gesture on our part. We give our captives Korans to read and they manufacture a false story about our guards flushing them into toilets, just to harm us.

Nothing we do to the prisoners in Guantanamo, nor anything we fail to do to them, will make some fanatic Taliban fighter in Afghanistan or Pakistan treat some US soldier, Marine, or Airman any better. It will not make them treat him any worse either. They think anything we print is mostly a lie anyway, so what good are gestures? Basically, this belittles our soldiers in some way in my opinion; pretending that they do not have to face what they do face every day; the knowledge of what can happen to them if they are captured. I think that this entire line of reasoning just belittles the bravery of doing your job no matter what the enemy is likely to do to you if you are captured.

Basically, we should be having a discussion about torture, but not getting carried away with foolish hope about the nature of the people who want to bring down Western Civilization, nor making specious arguments based on the Constitution or Geneva Convention. Even if we had tortured those people, it would have been legal.


~ by Jubal Biggs on May 2, 2009.

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