July 11, 2006 | National Review Online

Mythical Myths

Andrew Sullivan, via Georgetown's Marty Lederman (who has posted an analysis of “Myths” about the Supreme Court's decision in Hamdan and related issues), is quailing about NRO's editorial assessment that Hamdan has imposed on the United States a one-sided treaty with al Qaeda, which obligates the U.S. to provide the terrorists with Geneva Convention protections while permitting al Qaeda to go on shredding Geneva's civilizing standards. The charge, which labels NRO's argument “nonsense,” is disingenuous.

Lederman's theory, which conveniently omits critical facts that eviscerate it, is that modern treaties are generally non-reciprocal. This, he says, is an American innovation that stems from “the view … that we are legally and morally obligated to treat our enemies according to a baseline of civilized conduct, whether or not our enemies (e.g., the Confederacy; the Germans and Japanese in World War II; the Viet Cong) do likewise.” Consequently he asserts, borrowing from another commentator's half-baked analysis, “saying that we've now ‘effectively signed a treaty with Al Qaeda for protection of terrorists[,'] is like saying that because we've signed the International Convention for the Regulation of Whaling, we've now entered into a treaty with the whales.”

This ball of confusion conflates legal obligation with moral choice. While most of the conflicts Lederman refers to predate the 1949 Geneva Conventions, World War II prisoners were actually covered by the protections of the 1907 Hague Conventions (which were reciprocal in the sense of being owed only to other High Contracting Parties, such as Germany and Japan). But no matter; we do often make enlightened decisions (as with the Vietcong) to treat prisoners better than our legal commitments require. In truth, we have also done that with al Qaeda. That, however, is a choice, not an obligation, an important distinction because the incentive to make humane choices would diminish drastically if every choice became a legal precedent.

Some compacts are indeed non-reciprocal. That is because, by their terms, the parties intentionally obligate themselves non-reciprocally. Lederman's invocation of the U.N.'s Convention Against Torture and Cruel, Inhuman and Degrading Treatment (UNCAT) is a good example of this, albeit one that undermines his argument. In ratifying UNCAT, the U.S. did bind itself non-reciprocally against the practice of torture — rejecting it as an option regardless of the savagery of any provocation. But it pointedly did not make the same commitment regarding “cruel, inhuman and degrading treatment.” Rather, in the regular constitutional process for adopting treaties, the nation agreed to be bound by these terms not as the rest of the world may have interpreted UNCAT but only insofar as American law already addressed them. This ultimately changed in late 2005, but not because the treaty was “evolved” into something different by an unaccountable court. It changed by the democratic process, namely, the enactment of the McCain Amendment.

If the American construction of the Geneva Conventions had likewise been altered by the democratic process, we Hamdan critics would have nothing to complain about, however unwise we might regard the alteration to be. But not only has this not occurred; history proves the opposite. Fully recognizing that the Geneva Conventions as written and ratified did not provide protections for terrorist organizations (among other sub-national groups), human rights activists pushed for adoption of the 1977 Protocol I Additional. This Geneva supplement, however, was rejected by the Reagan administration precisely because the United States determined its adoption would legitimize terrorist tactics. That is, it would have been the antithesis of humane and civilized because it would have encouraged more terrorism.

Lederman and Sullivan, of course, can disagree with that theory of Protocol I. But it is intellectually dishonest to ignore it. In fact, Protocol I rather dramatically illustrates that the United States and the world neither intended nor believed Geneva to be generally applicable to irregular forces, much less non-reciprocal in the sweeping way that the torture elements of UNCAT are. Lederman's whaling example might be apt if the U.S. had actually adopted Protocol I. That would have evinced an unmistakable agreement to protect terrorists notwithstanding that terrorist groups were not parties to the agreement. But that's not what happened — an inconvenience Lederman gets around by simply omitting it from his “myth” making.

In demonstrating the meritlessness of Lederman's position, Protocol I merely bolsters Geneva's own terms. Lederman and Sullivan may be among those persuaded by the Hamdan majority's loopy interpretation of Geneva's Common Article 3. But the actual language of the provision will not bear this construction no matter how many international-law professors join the amen-chorus.

By its clear language, Common Article 3 applies only “[i]n the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties[.]” According to Lederman, “the whole point of Common Article 3 — its only application — is to provide Geneva protections to parties who have not themselves agreed to be bound by the Conventions.” That's sort of like saying the whole point of going to Yankee Stadium is to watch a shortstop. Yes, on a certain absurdly myopic level, it's accurate to say you're going to see a shortstop. But that is not the point at all, much less “the whole point.” The point is to see a particular shortstop, Derek Jeter, perform in a concretely anticipated context: as a member of the Yankees playing in a major league baseball game against another team. Outside that context, you may have some interest in shortstops, but not such as would trigger your duty as a fan to pay $50 and sit in a ballpark for three hours.

The point of Common Article 3 was not to provide Geneva protections to all parties who had not agreed to be bound. It was to provide Geneva protections to a very limited number of such parties who stood in a very particular, concretely anticipated situation: a civil war occurring inside the borders of a single country that was a Geneva signatory. Obviously, if the intention had been to protect all parties who otherwise fell outside the conventions' protections, it would have been an easy matter just to say that. To the contrary, strict qualifications were fashioned — and the attachment of such strings makes perfect sense when one considers Common Article 4, which sets strict conditions for how non-covered parties must conduct themselves to win — not be awarded but achieve by merit — prisoner-of-war protections.

Lederman and Sullivan are clearly delighted to buy onto Hamdan's suspend-common-sense theory, which holds that al Qaeda, though it projects power globally, somehow cannot be in an “international conflict” because it's not a nation. That, however, does not change the facts that (a) in our system, deference in the interpretation of treaties is owed to the chief executive, who negotiates, ratifies and applies treaties, and who is empowered to withdraw from them; (b) American courts have traditionally recognized the president's foreign-affairs supremacy as well as their own institutional inaptitude in this area; (c) President Bush's interpretation of the war on terror as an international conflict, even if one disagrees with it, is plainly colorable (I happen to think it is palpably correct, but that's beside the point); and (d) leaving aside one's construction of the term international character, Common Article 3 also speaks of a conflict that wholly occurs inside one signatory country, while al Qaeda is fighting against us — not against Afghanistan — in several countries, including our own.

Finally, the whole Common Article 3 obsession is the ultimate cherry pick. Even if one stipulates, for argument's sake, that the Hamdan majority and its admirers have correctly construed what it means, they still would confront an insuperable problem: the Conventions do not provide for judicial enforcement of the treaties' benefits. Common Article 8, for example, says, “The present convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers[.]…” In treaty parlance, “Protecting Powers” are a long-established but little used diplomatic device under which parties to a conflict pick a neutral country or humanitarian organization — not the court system of one of the parties to the conflict — through which to resolve such war related disputes as the treatment of prisoners. (See, e.g., Adam Roberts & Richard Guelff, Documents on the Laws of War (Oxford, 3d Ed. 2000), Introduction at p. 33.) Similarly, Common Article 11 prescribes that “[i]n cases where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention, the Protecting Powers shall lend their good offices with a view to settling the dispute.”

It could not be more clear. Conflicts over the interpretation of Geneva, even with respect to persons who were incontestably protected by the terms of the Conventions, were to be worked out by political leaders, diplomatically. Geneva rights were not to be enforceable by individuals via lawsuits. What Lederman, Sullivan, and Hamdan contemplate is not merely Geneva protections for terrorists; it is better treatment for terrorists than for anyone else.

In his summation, Sullivan snarks that what is at issue here is “about us, not about them[,]” and that NRO's purportedly heartless position reflects that we “just have lower standards for the West than others do.” Actually, NRO's editorial position was a reflection of what the law actually says, and of a conceit that if we are to be under entirely new treaty obligations, that should be decided democratically, either by legislation or the Constitution's treaty procedure — not by judicial fiat.

As for our “standards for the West,” Hamdan critics wish for it to remain civilized. The theory behind the Geneva Conventions was that rewarding the civilized conduct of warfare would encourage more civilized conduct, with the result that civilian lives would be saved. Al Qaeda targets civilian lives. Rewarding such behavior betrays Geneva's civilizing impulse and can only result in more civilian carnage. That is why the United States rightly declined to endorse Protocol I, and why the Supreme Court was not just imperious but flat-wrong to impose an unprecedented treaty with al Qaeda.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.



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