Should We Make a Treaty with al Qaeda?

Since the early 1990s, al Qaeda has, at the very least, killed American soldiers and desecrated their remains in Somalia; urged the murder of all Americans — civilians and military alike — wherever on the globe they may be found; conducted simultaneous sneak attacks on the American embassies in Kenya and Tanzania, resulting in the mass murder of over 240 civilians (the vast majority of them Muslims and non-Americans); killed 17 American seamen in an attempt to blow up the destroyer, the U.S.S. Cole; murdered 3,000 Americans in hijack attacks on the World Trade Center and the Pentagon; and spearheaded guerrilla wars in Afghanistan and Iraq that have killed well over a thousand American military personnel and countless civilians.

In addition to killing civilians in sneak attacks — commonly, detonating bombs within nondescript cars parked or driven in broad daylight in densely populated areas — they also secrete themselves among their once and future victims. They wear no distinguishing insignia to segregate themselves as a militia. They use mosques and schools and hospitals to plan and store weaponry. They feign surrender and then open fire on unsuspecting coalition forces attempting the civilized act of detaining, rather than shooting, them. As for treatment of their own detainees, their practice ranges from execution-style homicide to beastly beheading — usually captured on film and circulated on the Internet to buck up the other savages while scaring the living hell out of everyone else.

So here's an idea: Let's make a treaty with them.

Let's reward this behavior with a grant of honorable-combatant status. Let's give them the same kind of benefits the Geneva Conventions reserve for soldiers who play by the rules: who identify themselves as soldiers; who don't intentionally murder civilians; who do not threaten schools, hospitals, and houses of worship by turning them into military targets; who grant quarter honorably; and who treat their captives with dignity and respect. Let's provide al Qaeda with “amenities such as dormitories, kitchenettes, sports equipment, canteens, and a monthly pay allowance in Swiss francs” — the Geneva prescriptions for POWs that Lee A. Casey and David Rivkin Jr. outline with characteristic clarity in the current issue of National Review.

Of course, we'll have to find someone from al Qaeda able to sign the treaty. This is no small issue. Leaving aside the whole fugitive-on-the-lam problem, treaties, you see, are signed between and among nation states. Many nation states are repressive, but the nation-state as a concept is generally thought to be a human good — an organizing arrangement under which a variegated society can flourish. Al Qaeda, of course, is not a nation state. It is an international terrorist network. It's also not too variegated. It exists to terrorize and kill, which tends to chill a vibrant social order.

Nevertheless, we can surely find someone to ink the deal. News recently broke that Abu Musab Zarqawi just got a big promotion, becoming al Qaeda's “Emir of the Jihad” in Iraq. Sure, it's not exactly our usual conception of a chief executive, a secretary of state, or a foreign minister. But Zarqawi, a Jordanian, finds himself in Iraq because right now that is the best place to kill Americans. That's the skill at which he is sufficiently adept to have gotten the gig because that's exactly what a high official in al Qaeda is supposed to do. Not your idea of the kind of entity you envision the good ol' U.S.A. signing treaties with? You are so 20th century!

In fact, saying such things aloud may make progressive-minded humanitarian activists start thinking of you as one of those troglodytes who actually thinks sitting down to negotiate anything with such an entity, or granting it the tiniest concession, legitimizes and empowers it. These, obviously, are the same backward thinkers who have the temerity to suggest that giving Geneva Convention protections to terrorists rewards, therefore encourages, and therefore guarantees more terrorism. Talk about quaint.

Quaint, of course, brings us to Alberto Gonzales, the White House counsel nominated by President Bush to be the next attorney general of the United States. Gonzales has been numbingly libeled for having called the Geneva Conventions “quaint.” Naturally, this is not close to what he said. Rather, he asserted that the terrorist style of warfare had rendered “quaint” the notion that al Qaeda captives merited such Geneva-based provisions as “commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms and scientific instruments.” Incidentally, he made this statement in a memorandum to his boss — that is, from the White House counsel to the president. In the height of mid-90s scandal, Democrats and the mainstream media tended to view the very thought of intruding on that relationship as an unspeakable violation of the attorney-client privilege and the end of the Bill of Rights as we know it. Now…they want the rest of the memos. Evidently, they've evolved.

This, no doubt, is because Gonzales, aside from being an intimate of the sitting Republican president, is also, alas, one of those sticks-in-the-mud who thinks we shouldn't treat al Qaeda terrorists as if we had a treaty with them, and that we shouldn't accord the privileges and immunities of honorable warfare to barbarians. For such positions has be been castigated by a hastily assembled group of retired military brass with a recent history of anti-Bush activism, the American Civil Liberties Union, and the usual cabal of “human- rights activists” who, though they've never met a terrorist they wouldn't coddle, don't seem to get particularly whipped up over humans whose work day is interrupted by hijacked jumbo jets crashing through office windows.

In any event, on Thursday, the Senate Judiciary Committee will hold a confirmation hearing for Gonzales. Critics are urging committee Democrats to question the nominee aggressively on the benighted administration policy of no Geneva protections for terrorists whose lives are singularly dedicated to annihilating Americans. Fair game, one supposes, but no senator should be allowed to take up the torch without at least answering a simple question: Do you favor a treaty with al Qaeda?

The inarguable, inconvenient fact is we have no such treaty. Al Qaeda is not and, indeed, cannot be among Geneva's high contracting parties. It is not a country. The U.S. has for over two decades expressly rejected a treaty — the 1977 Protocol I to the Geneva Conventions — that would have vested terrorists with Geneva protections. I hate to spoil the party, but if we're going to have such a treaty with al Qaeda and other terrorist organizations, it will have to be a new one.

Under Article III of the Constitution, the consent of two thirds of the Senate's membership is required before a treaty can be approved. Although we haven't yet been able to arrange getting President Bush and Emir Zarqawi together for a signing ceremony, getting the senators on record — especially given the caviling over Gonzales — could really get the ball rolling. So let's ask them. All of them. Plain and simple, so the folks back home know just where you stand: Do you favor a treaty with al Qaeda?

Does anyone think there are 67 yea votes on that one? How about ten? How about one? No. The fact is, outside a lunatic fringe, there's not a politician in America who would support something so absurd.

The next attorney general's position on this matter is not a radical view. It's America's view. So ask away — it'll be good for all of us to know where everyone stands.

— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.