Back in the happy-go-lucky days after September 11, when Bush could get away with nearly anything he wanted (and he wanted to get away with a lot), his naturally malevolent character motivated him to seek ways to violate the Geneva Conventions. It never mattered to George whether torture is "effective" or "productive." It doesn't matter to him whether it produces false or misleading evidence, as it undoubtedly does and has. His motivations were always malicious, and the whole giant barge of baloney floated under the "ticking time bomb" theory of justification was always way, way beside the point.
No, George wanted legal license to make certain various Sons of Allah, more or less snagged at random, suffer in ways that the civilized world prohibits, simply because Bush does not like the constraints of civilization. Why he doesn't is again entirely beside the point.
Thus it was that Bush commissioned his crack team of Inquisitors to research the law of torture and abuse and find legal loopholes that would permit him to violate the Geneva Conventions. Preferably with complete impunity. Alberto Gonzalez, at that time White House Counsel, was naturally eager to help. He had helped Bush set an American record for executions in Texas while George was Governor, and established an unblemished standard of never, ever granting clemency to any condemned convict, including the retarded and the patently insane. Gonzales, sensing the gravity (and the opportunity) of the mission, retained the help of John Yoo, a professor of law at Berkeley's Boalt Hall (the institution which has also spawned Phillip Johnson, the creationist apologist). Not surprisingly, Gonzalez and Yoo (and others eager to help, of course) found "the way forward." The al-Qaeda flotsam and jetsam falling into American hands in the mountains and poppy fields of Afghanistan weren't really humans at all. They were a kind of homo sapiens sub species known as "enemy combatants."
Bush was exultant. Waterboarding; beatings; mock executions; insanely loud music played in confined quarters for interminable periods; stress positions; the homoerotic fun of group nudity and sodomy; incarceration in dungeons and other shitholes; hypothermia; starvation and dehydration; fear, terror and intimidation. Even the occasional, lamentable death (46 at last count). All were now within the Administration's scaly grasp. What a great day for America. And on the surface of things, Bush seemed to have a pretty good case for his end-run around the norms of civilization. What law protected these untermenschen, if Article 3 read as follows?
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
So far, so good, thought Bush & the Gang. Maybe the Taliban prisoners, as soldiers of a "High Contracting Party," (Afghanistan) were entitled to some kind of grudging civility. But the real prizes, the al-Qaeda creeps - no such luck. All bets were off. Al-Qaeda was not a signatory to anything. Not even a country, let alone a "contracting party." Crank that wheel another turn, Torquemada!
Along comes the elderly kill-joy John Paul Steves, Associate Justice of the United States Supreme Court. Writing for the Court in Hamdan vs. Rumsfeld:
"The Court of Appeals thought, and the Government
asserts, that Common Article 3 does not apply to Hamdan
because the conflict with al Qaeda, being “‘international in
scope,’” does not qualify as a “ ‘conflict not of an international
character.’ ” 415 F. 3d, at 41. That reasoning is
erroneous. The term “conflict not of an international
character” is used here in contradistinction to a conflict
between nations. So much is demonstrated by the “fundamental
logic [of] the Convention’s provisions on its
application.” Id., at 44 (Williams, J., concurring). Common
Article 2 provides that “the present Convention shall
apply to all cases of declared war or of any other armed
conflict which may arise between two or more of the High
Contracting Parties.” 6 U. S. T., at 3318 (Art. 2, ¶1). High
Contracting Parties (signatories) also must abide by all
terms of the Conventions vis-à-vis one another even if one
party to the conflict is a nonsignatory “Power,” and must
so abide vis-à-vis the nonsignatory if “the latter accepts
and applies” those terms. Ibid. (Art. 2, ¶3). Common
Article 3, by contrast, affords some minimal protection,
falling short of full protection under the Conventions, to
individuals associated with neither a signatory nor even a
nonsignatory “Power” who are involved in a conflict “in the
territory of” a signatory. The latter kind of conflict is
distinguishable from the conflict described in Common
Article 2 chiefly because it does not involve a clash between
nations (whether signatories or not). In context,
then, the phrase “not of an international character” bears
its literal meaning."
Upon such fine nuances may hang a man's entire future. Not so much a failure to read the fine print as a failure to appreciate the full import of the fine print. Hamdan, allegedly Osama's limo driver, was not "associated" with a signatory (the Afghan/Taliban or the United States), but he was, alas, "involved in a conflict 'in the territory' of a signatory" (Afghanistan). And, further alas, that conflict is "not of an international character" because as Bush, and Cheney, and Rumsfeld, and Addington, and Gonzalez, and Yoo, and Carbone and all the other charter members of Torture 'R Us keep insisting: Al Qaeda is not a nation, so it can't be involved in an international conflict, that is, one "between nations." Unfortunately for these future defendants (perhaps the near future, in Germany), this accurate observation had exactly the opposite effect to that hoped for.
So Common Article 3 is right on point. Oh, I know. It's so easy to figure something out once someone tells you the right answer.
Hamdan, it turns out, was a human being with rights under Article 3. Who could have imagined such a thing? The consequences of this revoltin' development, as Jimmy Durante would have said about something actually funny, will be spelled out next time.
November 14, 2006
Posted by Waldenswimmer at 9:51:00 AM