April 4, 2007 | National Review Online
I once avidly read Andrew Sullivan. I’ve fallen out of the habit in the last few years. As documented extensively by Jonah Goldberg and Ramesh Ponnuru, among others, on National Review Online, Sullivan, in his modest celebrity, has gone shallow — interested more in the quick Gotcha! than the engaging rigor that made me like him in the first place. But yes, it has been brought to my attention that he has taken me to task for the purported hypocrisy of this piece, in which I decry Iran’s blatant violations of the Geneva Conventions in its treatment of 15 captured British marines and sailors.
There is hypocrisy here only if you live in Sullivan’s emotion-wrought world, where righteous indignation frequently substitutes for facts, law, and reason. I will try to explain this as simply as I can, although my sense is that Andrew (whom I don’t know) is a smart guy, so it’s not like he doesn’t get where I’m coming from — he is, instead, choosing to caricature it.
The Geneva Conventions are not an anthem. They are treaties, which make them the stuff of contract — i.e., specific obligations by which parties, after careful consideration and, in the U.S., a constitutionally mandated ratification process, agree to be bound. They are not an expression of zeitgeist that evolves with the whims and passions of changing times or excitable commentators.
OPTING IN, PROTOCOL I & HAMDAN
The Third Geneva Convention, which deals with treatment of captives in an armed conflict, exactingly prescribes an opt-in regime. “High contracting parties” to the agreement are duty-bound to honor its terms with respect to the other high contracting parties; others, be they countries which did not sign the treaty or non-state forces, may qualify for Geneva protections, but only by compliance with the treaty’s terms for the recognition of non-party rights.
Andrew alleges I am being hypocritical in the case of Iran’s mockery of Geneva because of what I have previously said about the Bush administration’s qualified rejection of Geneva in some theaters of the war on terror. I have to think he knows better than that. Repeatedly (see, e.g., here and here), I have contrasted captured unlawful enemy combatants fighting for sub-national terror networks with captured members of the regular armed forces of another, sovereign, high contracting party. The latter, such as the Brits held by Iran, are undeniably protected by Geneva; the former, such as al Qaeda operatives apprehended in our ongoing war, are presumptively not covered by Geneva. That is just a fact. It’s got nothing to do with how one feels about it.
In the case of sub-national, irregular forces, Geneva provides an opportunity, under limited circumstances, for opting in to its framework. We could argue about the circumstances (presently, I’ll get to one of them, addressed in the Supreme Court’s Hamdan case), but it’s really not necessary to do so. For all other considerations aside, to get the benefits, irregulars must at a minimum acknowledge and abide by the terms of Geneva. Article 2 is very clear: a non-party may not earn the privileges and immunities of the treaty unless it “accepts and applies the provisions thereof.” These provisions, most fundamentally, include using force only in accordance with the laws and customs of war. Al Qaeda exists to flout those laws and customs, which are tightly aimed at protecting civilians and civilian infrastructure — the terrorists’ main targets.
Thirty years ago, people just like Andrew Sullivan — people admirably concerned about human rights but, in my view, naive in their methods — actually tried to get Geneva protections for terrorist groups and sub-national militias. Specifically, they urged the adoption of the 1977 Geneva Protocol I. Why? Precisely because they well understood what is pellucid in Geneva’s language: Terrorist groups and sub-national militias are not protected by the terms of the treaties. Were they protected, the entire Protocol I exercise would have been a monumental waste of time.
The United States declined to join Protocol I. You can argue that we should have (I would disagree). You can even argue that Protocol I, despite our express refusal to be bound by it, has now somehow transmogrified into binding international law (again, I would disagree). But the inescapable facts are that (a) Protocol I is a treaty adopted by many of Geneva’s high contracting parties because Geneva, as written, does not protect sub-national irregular forces which fail to opt in and otherwise qualify; and (b) while treaties do not become the law of the United States absent ratification, and international law obligations may not be imposed on the United States absent an act of Congress, the United States has neither ratified Protocol I nor enacted its provisions.
In Hamdan, the Supreme Court construed Geneva’s Common Article 3 (CA3) to accord some minimum standards of humane treatment to non-state combatants. To do so, the majority had to (a) torture (pardon the pun) the language of CA3, which by its terms applies only to conflicts not of an international nature (the war against jihadists, to the contrary, is not merely international but intercontinental); and (b) ignore settled law that courts must defer to the president’s interpretation of treaties (including such questions as whether a conflict is international, on which the executive branch, not the judiciary, has the superior institutional competence). That five justices came to this conclusion does not make it the right one — although certainly we must honor it as the binding one. But it bears emphasizing that even those five justices did not claim unlawful alien combatants are entitled to the same protections as honorable prisoners of war.
The most frustrating thing about having one’s arguments twisted as Andrew twists mine is that I want what I know he wants, which is to promote human dignity, reduce human suffering, and minimize torture and illegality. I am not claiming that alien combatants should have no protections. I am simply stating as a fact that they fall outside the existing legal frameworks. This is no different from saying that an insurance contract fails to account for a particular type of injury. As a human being, I might well feel that society ought to do something to redress the injury. But as a lawyer, a citizen, or — were I one — a judge or a policy maker, it would be wrong for me, based on my subjective sense of right and wrong, to pretend that the contract covers the injury if it doesn’t. Not only would that discourage people from contracting, which would be bad for society; it would, further, usurp authority that doesn’t belong to me.
The question of due process for captured combatants is as much an argument about who should decide as what should be decided. It is frequently the case that actors and actions fall outside the scope of constitutional protections and treaty obligations. That does not represent an assessment that those people and actions should exist in a law-free zone. The Constitution sets forth basic protections for members of our body politic; treaties often set forth protections (usually enforceable by diplomacy, not courts) for defined classes of persons. If someone falls outside those frameworks — if someone is a member of neither the body politic nor the treaty-defined class — that does not mean the law should not reach them. But it does mean that, to reach them, we need to make new law.
In our democracy, that is the function of the political branches. When an emergent problem demands action, we should not want old laws stretched beyond recognition and in contravention of the purposes for which they were enacted. We should want Congress to fix it with new laws adapted to the new challenge.
We should not want courts to come to the rescue, particularly when the matter involves international relations in the context of treaties that expressly disclaim judicial enforcement. Courts are supposed to enforce antecedent law. When a person or his conduct falls outside existing legal frameworks, a court cannot reach it without pretending those frameworks say something they do not. Such pretensions are bad in at least three different ways: (a) they pervert the frameworks for future purposes; (b) a court is likely to get the result wrong because it is set up to decide cases as framed by self-interested litigants, not to address societal problems in the public interest; and (c) when a court gets it wrong, it is harder for a legislature to repeal or correct the damage, especially if the court purports to ground its decision in a command of the Constitution.
I am not saying that unlawful alien combatants should have no rights. I am saying that it is for Congress and the president to determine what those rights ought to be in a searching legislative process that balances, in the way a court cannot, the conflicting goals of national security, human rights, military necessity, cooperation of our allies, intelligence needs, and appeal to Muslim moderates. It is a very complex balancing act, and it may take us several swings before we get it right — all the more reason why it should be done by Congress.
WHERE WE DISAGREE
It’s a shame that Andrew goes the simpleton route — McCarthy’s “beloved [Bush] administration”; McCarthy supported Abu Ghraib abuses; McCarthy liberally enables use of water-boarding, sleep deprivation, and stress positions for prisoners of war; blah, blah, blah. Readers can judge for themselves, but none of this is so — I’ve hammered the Bush administration quite often; I’ve called for the creation of a national-security court to try to strike a better balance between due process and national security; I condemned Abu Ghraib; and I don’t support coercive interrogation as a regular practice. But as I really do think Sullivan and I are not worlds apart on goals, we might actually have had a worthy discussion about how best to maximize the recognition of human dignity and minimize torture (including interrogation methods that are close to torture even if they don’t meet the statutory definition). I take his good faith as a given even though I sincerely believe his way leads to more atrocities. I don’t know why he mocks mine.
In any event, I have some core philosophical differences with what I take to be Sullivan’s positions. On the Third Geneva Convention, literal terms aside, I believe it is a betrayal of the treaty’s civilizing impulses to grant its benefits to those who refuse to take up its burdens. Geneva’s raison d’etre is to impel warriors to conform to its civilian-protective standards. If you reward barbarity by treating terrorist operatives as if they were honorable combatants, you are guaranteeing more barbarity. But saying terrorists are not entitled to the POW protections of Geneva is not the same thing as saying we are not morally obligated to recognize their human dignity. And, indeed, irrespective of Geneva, we are legally obligated to refrain from torture under the United Nations Convention Against Torture and its resulting statutes (which render torture illegal under federal law).
On torture, I have two disagreements with what I understand to be Andrew’s stance. (Again, I am no longer a regular Sullivan reader, so I don’t claim familiarity with all his writings on this subject, though I think I have read enough to know where he stands. If I have misstated his position, I apologize.) First, while I concede that torture is despicable, I don’t believe moral wrongs live in a vacuum. So I don’t agree with what I take Sullivan’s view that torture is so evil it must never be resorted to, no matter what the stakes. Indiscriminate mass homicide as practiced by terrorists is, for me, a worse moral wrong than some forms of coercing information from a culpable person. Attempting to get the information under emergency circumstances where getting it could save innocent lives is, for me, a lesser wrong than knowingly doing nothing and allowing the annihilation of those it is one’s highest duty to protect.
That does not mean anything goes. There are some methods of culling information (e.g., mutilation, harming innocents to induce cooperation) that are so repugnant they should never be resorted to. And coercion approaching torture should never be acceptable unless there is a true emergency and a good-faith basis to believe the detainee’s information could be used to foil the attack. But if we were in a ticking bomb scenario, I don’t believe it would be unacceptable to inflict pain on one of the plotters in order to try to save, perhaps, thousands of lives. I say that with great trepidation, and with due respect for the contrary view that this is a slippery slope to be avoided at all costs.
Secondly, if you assume as I do that there are certain, very limited circumstances in which torture would be acceptable, you are left with the problem of how to regulate so that only that torture, and no other, takes place. I take Andrew’s purist position to be close to that of Judge Richard Posner. Unlike what I believe Andrew thinks, Judge Posner accepts that torture may sometimes be necessary under dire circumstances. Yet, he argues, with great force, that we should nevertheless maintain a categorical ban with no exceptions.
Posner’s theory, explicated in his invaluable book, Not a Suicide Pact: The Constitution in a Time of National Emergency, is that (a) government inevitably tends to push the limits of any license we give it (such that torture, even if tightly controlled at the start, would progressively be extended to scenarios beyond the types of exigencies originally contemplated); and (b) we can trust that those sworn to protect national security would know enough to ignore the categorical ban in a true emergency, such that we would only have torture in a true emergency, which is the best we can hope to do in terms of minimizing it. (The latter, interestingly, is a position also taken by no less an anti-torture absolutist than Senator John McCain in an op-ed he wrote during the torture debate.)
I think this is a very reasonable argument; I just disagree that it is the best way to minimize torture. It is simply not the case that government always pushes the envelope, especially when personal liberties are implicated. The infamous intelligence “wall” between national-security agents and criminal investigators is one prominent example (there are several others) of government harnessing itself to ensure that it did much less than the law would have permitted (in gathering intelligence against foreign agents).
A lack of realism, clarity, and accountability in the law, such as we have now, is in my mind more likely to lead to unacceptable torture and other prisoner abuse. Consequently, my position — which is not shared by my “beloved administration” — has long been that we should have an honest debate about torture and coercive tactics short of torture; we should decide what situations and what methods are acceptable; we should require an accountable sign-off by a high-ranking executive-branch official before any forcible interrogation; we should require oversight by at least one of the other branches; and we should subject to aggressive discipline or prosecution any forcible interrogation that occurs outside these protocols.
For what it’s worth, I think such measures for regulating interrogation would result in less torture than would otherwise occur (and it defies human experience to think we can eliminate torture). Moreover, bear in mind that the vast majority of interrogation has nothing to do with torture or anything close to it. Giving al Qaeda terrorists the status of honorable POWs under Geneva would mean, among other things, they’d be privileged to tell us nothing but their names and — however unlikely — their ranks and serial numbers. That would shut down interrogation completely, which would be utterly irresponsible in a war where intelligence is our only defense.
The intelligence we have obtained from interrogating hundreds of detainees has saved countless American lives — civilian and military. It has saved countless non-American lives as well. I don’t like the fact that our inevitable screw-ups and excesses have given our enemies propaganda points, seized on in the Islamic world and, regrettably, by people like Andrew who should know better. Still, I was at the World Trade Center right after it was bombed in 1993 and destroyed in 2001. The horror defies description. I was at the embassy in Kenya where over 200 people were killed, and I spent countless hours there interviewing survivors whose lives were wrecked by rubble and flying glass. If I have to endure enemy propaganda or enemy terror strikes, I’ll take the propaganda.
None of this, though, has much to do with the 15 Britons. Iran does not have arguable, theoretical Geneva obligations to them; its obligations are, instead, indisputable and ironclad. It is apples to Andrew’s overripe Abu Ghraib oranges. Truth be told, I was moved to write about it because I sensed a good deal of hypocrisy. It seemed to me that critics who’d been apoplectic over America’s non-violation of Geneva were being awfully quiet about the Iranian regime’s undeniable violations of Geneva. I ended up not making the hypocrisy point because I decided it wasn’t fair. But fairness, I guess, is in the eye of the beholder.
— Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.