(Cross-posted at Upturned Earth, where comments are open)
Sonny Bunch has responded to JL’s excellent post yesterday discussing the problems with holding so-called “stateless terrorists” to a lower standard of human rights. JL’s argument was essentially that the Bush Administration’s arguments for avoiding the Geneva Conventions with respect to alleged terrorists denies those individuals their essential humanity, regardless of whether those individuals would act in an inhumane way.
Sonny’s response is two-fold: first that accused terrorists do not “deserve” the protections of Geneva as a legal matter (I think he’s wrong, and for what little it’s worth, I actually am an attorney), and second, that they have forfeited their moral claim to the benefits of human society:
By engaging in the behaviors that enemy combatants have engaged in, they have forfeited their place in human society and the basic protections that all members of human society should be afforded. If you plan to kill civilians–men, women, and children who want to go to the open air mall or fly on an airplane or whatever else–for the purpose of causing terror, you have given up your claims to human sympathy and basic human decency. If you capture people on the battlefield and ritually slaughter them on videotape for the purpose of causing terror, you have given up your claims to human sympathy and basic human decency. The United States’s lawyers haven’t separated the world into “two classes” of humanity. These men have done it themselves by their actions. Terrorists are subhuman, morally if not genetically.
So legally speaking, enemy combatants don’t deserve the protections afforded them under lawful combatants as far as Geneva is concerned. And morally speaking, enemy combatants haven’t fulfilled even the most basic tenets of the social contract.
Needless to say, I think he’s very wrong about this. There are a few obvious flaws in his reasoning, one of which he even acknowledges in the comments - to wit, we are denying these individuals their humanity without first having provided due process to prove their guilt or innocence in the first place; if we haven’t proven guilt or innocence, we can’t know for certain that these individuals have committed the acts that allegedly forfeit their membership in the human race. There is also of course the utilitarian point that torture is terribly unreliable and thus inefficient.
But the more pertinent problem is this - it is abysmally arbitrary to argue that someone gives up their moral and legal right to be called a “human” simply because of the type of crime they are alleged to have plotted and because of their citizenship status at the time of that plotting. Except for anti-immigration extremists, for instance, would argue that an accused murderer who happens to be an illegal immigrant should be held permanently without trial or otherwise deprived of basic due process rights simply because of his citizenship status - and that is for a crime that is committed, if at all, within the physical borders of the United States. Yet, when the crime is that the accused was involved with an organization with the terrorist label, Bunch’s argument would hold that the accused loses all fundamental human rights, both morally and under international law, regardless of whether the accused committed his acts while within another jurisdiction. This is extraordinarily arbitrary, to say the least, resulting in a situation where we are more willing to deprive individuals of basic due process protections when they never avail themselves of the jurisdiction of the United States than when they are accused of express violations of US law, of which they have intentionally availed themselves.
I suppose the counter to this is that terrorism is “different.” I fail to see how, though - the only difference between terrorism and other forms of murder/attempted murder is the actor’s intent to use the crime to further political aims . . . and last I checked, conservatives and libertarians were not particularly big on enhancing punishments because of the political message underlying a crime (see, e.g., conservative and libertarian opposition to so-called “hate crimes” legislation).
Ideally, we would turn over accused terrorists to local authorities, of whose jurisdiction the accused have deliberately availed themselves. But that is not always realistic, especially since in many instances those local authorities may be sympathetic to the accused terrorists. And that is (or at least should be), to my knowledge, one of the very points of the Geneva Conventions - to provide some form of cover to prevent captured combatants from falling into some sort of a legal “black hole.” That the combatants are acting on behalf of a stateless group rather than a recognized nation should make no legal or moral difference - they are still acting within that nation’s jurisdiction, subject to the laws of that nation (which would include any treaties to which that nation is signatory). Nor does the fact that the combatants themselves have failed to abide by the Geneva Conventions remove the combatants from the protections thereof, from either a moral standpoint or a legal one: “two wrongs don’t make a right” is a true statement from both perspectives. Instead, each violation of the Geneva Convention, just like every immoral act, is a separate and discrete instance.
Otherwise, the Geneva Conventions would be utterly useless, since war crimes will inevitably happen on all sides in a conflict, with or without those conventions. North Vietnam’s ignorance of the Geneva Conventions (to which it was a signatory), for instance, did not justify ignorance thereof by the US, and I don’t think many would argue otherwise.