Geneva Convention Does Not Protect Terrorists

In April, President Obama released Bush Administration legal memoranda from around 2002 which approved "Enhanced Interrogation Techniques." The nation's left-leaning mainstream media, and commentators the world over, are attacking these so-called "Torture Memos" from the Bush Administration. Activist groups, including many funded by George Soros, are calling for criminal prosecutions of Bush Administration officials for having approved "torture."

However, calls for investigations lost momentum on Capitol Hill. Republicans aggressively documented how Democrat Congressional leaders were briefed on the interrogation techniques over the years. Democrats had approved or at least raised no objection. House Speaker Nancy Pelosi was reduced to quibbling over whether she had been briefed only about waterboarding as an approved technique or about when the military actually start using it. Democrats waved off questions about their own involvement in approving the techniques by protesting that the briefings are still classified.

Accusations that the Geneva Convention was violated might allow prosecutions of Bush Administration officials and U.S. soldiers in the International Criminal Court in the Hague with accusations of war crimes. Already, a Spanish court agreed to consider a criminal case against six former Bush administration officials, including former Attorney General Alberto Gonzales; former undersecretary of defense for policy Douglas Feith; former Vice President Dick Cheney's chief of staff David Addington; Pentagon lawyer William Haynes and Justice Department officials John Yoo and Jay S. Bybee.

As reported in the POLITICO, Senate Leader Harry Reid offered one of the most curious quotes in Congressional history: “I think it would very unwise from my perspective to start having commissions, boards, tribunals until we find out what the facts are." Normally, finding out what the facts are is the reason for holding commissions, boards, and tribunals. Thus, Sen. Reid apparently suggested that the Democrat-controlled Senate would hold commissions, boards, and tribunals with pre-determined outcomes, after deciding behind closed doors in advance what facts those bodies would be organized to "find."

Initially it must be said that no actual "torture memos" exist. The released Bush Administration memos analyze what interrogation techniques are NOT torture. The memos identify techniques that are lawful and approved for US interrogation of captured terrorists and detained combatants. So technically the memos are "not torture memos."

The actual content of the "not torture" memos has been routinely ignored in favor of sensationalized myths and misconceptions. In fact, the disparity is significant, with approved interrogation techniques including putting a harmless caterpillar in a known terrorist's prison cell, reading Harry Potter books to a terrorist, and playing Celine Dion' records to a terrorist.

This causes wonder if someone might one day call in a "caterpillar scare" at the U.S. Capitol, warning that somewhere in the Congress a caterpillar is loose. Would there be an evacuation, or would everyone admit that caterpillars are really not all that scary? Might a protestor someday disrupt a Congressional hearing by singing Dion's "Near, Far, Wherever you are..." from Titanic?

Even the practice of "walling" turned out to involve a fake, harmless, soft "nerf" wall. The technique was to make a terrorist believe he was going to be slammed against a wall, but it was actually a soft, flexible fake. All the techniques required medical supervision to ensure safety.

However, one of the most important parts of this issue is whether the Bush-approved interrogation techniques violated the Geneva Convention. This is especially troubling, because left-leaning, generally anti-American bureaucrats in Europe, the United Nations, and around the world have a great deal of influence in redefining the meaning of the Geneva Convention and related protocols. There is no precise meaning of "international law" because there is no ultimate authority like America's Supreme Court. Therefore, international bureaucrats have enormous opportunities to bend and shape such concepts to their liking, and against America's interests.

As Cliff May, President of the Foundation for the Defense of Democracies, explains, U.S. detainees are "not, in fact, people entitled to the protection of the Geneva Convention." In fact, Cliff May was quoting from Eric Holder, now Obama's Attorney General. Holder said those words on CNN in January 2002. Attorney General Holder explained in that 2002 interview that if Al Qaeda hijacker Mohamed Atta had "survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not."

Article 4 of the Geneva Convention defines "prisoners of war" as either members of the armed forces of a nation that has signed the Geneva Convention (which does not apply) or --

"2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war."

However, the terrorists and unlawful combatants detained by the United States military do not fall within this definition. They do not belong to a "Party" (a signatory to the Geneva Convention). In fact, they are attempting to overthrow the elected governments of Iraq and Afghanistan.

The terrorists do not operate under the command of a responsible officer, but independently as decentralized cells. They do not have a distinctive sign -- that is a uniform or insignia -- recognizable at a distance. They do not carry arms openly, but conceal themselves as civilians hiding among the civilian population. And they do not conduct their operations in accordance with the laws and customs of war.

These conditions are extremely important because they are intended, in part, to protect civilians. Fighters who are disguised as civilians -- not wearing uniforms or "a fixed distinctive sign recognizable at a distance" -- endanger the civilian population. The Geneva Convention was designed to punish those who act in this way by depriving them of its protections. A recent example was the battle in Gaza, in which Hamas used hospitals as military command posts and Hamas leaders dressed up as doctors.

Therefore, it is imperative that unlawful combatants be deprived of the rights of the Geneva Convention. There must be consequnces for fighters who endanger civilian populations. There must be a clear difference between how fighters are treated when they obey "the laws and customs of war" and when they do not. Any failure to punish those who hide among and behind civilians is as dangerous as failing to enforce the Convention. It is vitally important that combatants who violate its terms and endanger civilians must feel the consequences of losing their rights under the Convention.

To extend the Geneva Convention's protections to the terrorists places civilians in grave danger, by encouraging combatants to hide among them and behind them. Thus, ironically, attempts to extend the Geneva Convention to irregular combatants like the Taliban or terrorists threatens the Geneva Convention itself. Allowing irregular combatants to violate the laws of war and yet suffer no consequences, undercuts the Convention in general. The proposed expansion of the General Convention to cover the Taliban and Al Qaeda terrorists who do not abide by the Convention's requirements, encourages non-compliance with the Convention and international law.