Ronald Kessler appeared on the Daily Show this week to promote his book, The Terrorist Watch. Here is what Kessler had to say:
Ronald: Well, the Geneva Conventions actually allow [waterboarding] because these people are not regular military people in uniforms.
Jon [Stewart]: Geneva Conventions allows you to waterboard people who don’t wear uniforms?
Ronald: Yeah, because these are people who behead people, they don’t abide by Geneva Conventions.
Although I am a law student who has studied international humanitarian law a bit, I am by no means an expert. Nonetheless, I can affirmatively and confidently say that Ronald Kessler is 100% wrong about this.
The 3rd Geneva Convention of 1949 discusses treatment of prisoners in armed conflicts. The other Geneva Conventions are not directly relevant here. Article 3 of the 3rd Convention states:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(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.
Article 4 of the 3rd Geneva Convention relates to Prisoners of War. The relevant portions state that to be considered a prisoner of war, a person must be:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, incuding 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.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
...
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Article 5 then states:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
The Taliban was the official government of Afghanistan when we invaded. The question of whether or not they were a tyrannical government (they were), whether or not they supported Al-Qaeda (they did), and whether or not they act in conformity with the rules of war (they did not) are irrelevant. The U.S. invaded Afghanistan, and the people fighting us there were "members of the armed forces of a party to the conflict." Any captured Taliban fighters must, according to the Geneva Convention, be afforded POW status.
As stated in Article 3, however, even those who don't fall under Article 4's protections must, at a minimum not be subject to cruel or degrading treatment. Article 3 is referred to as "Common Article 3" because it is present in every Geneva Convention. The clear intent was that no detained person, regardless of their status or of the nature of the conflict, should be allowed to fall through the cracks of international humanitarian law. As the Center for Defense Information states:
Common Article 3 of the Geneva Conventions of 1949, if followed, can provide a core "bill of rights" safety-net for detainees even if additional Geneva Convention provisions were not applied.
At this point, it goes without saying that Kessler was completely wrong in his assertion that torture laws only apply when a detainee is wearing a uniform. The presence of a uniform is only relevant in the determination of whether a detainee is afforded POW status. The prohibition on torture, however, APPLIES TO EVERYONE.
Indeed, the Supreme Court in the seminal 2006 case Hamdan v. Rumsfeld held that individuals detained by the U.S. in the "war on terror" must be held at least in accordance with the protections of Common Article 3.
In his dissent, Justice Thomas wrote that those captured are "unlawful enemy combatants" and are therefore not protected by the Geneva Convention. This is a similar line of thinking to that expressed by Ronald Kessler. This is wrong. The Geneva Convention makes absolutely no mention of "unlawful enemy combatants." As far as the Geneva Conventions are concerned, everyone is either a combatant or a civilian, and there is nothing in between. As Nathaniel Berman writes in the Columbia Journal of Transnational Law:
Indeed, in the way in which it was deployed by the U.S. government,
it appeared to create a category of rightless persons—neither criminal
suspects nor prisoners of war, committed to the caprice of
unreviewable state power. Some of the critics of the United States
even asserted that the term had been newly coined for the specific
purpose of justifying U.S. policy towards post-9/11 prisoners, that it
had been invented in the fall of 2001 "for Donald Rumsfeld . . . to get
him through his news conferences."
The sole purpose of the designation of "unlawful enemy combatant" was to find a loophole in the Geneva Conventions that would allow the U.S. broad authority to determine for itself what it can and cannot do regarding treatment of detainees in the war on terror. Even if we assume that the Geneva Conventions do not apply to so-called "unlawful enemy combatants," torture is still prohibited under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which states in Article 2:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Kessler, naturally, argued that waterboarding is not torture, and that is different from the practices for which we prosecuted the Japanese after World War II (known as "water cure"). Waterboarding is typically defined as "simulated drowning." This is entirely incorrect. Waterboarding IS drowning. Evan Wallach reported last year about the technique used by the Japanese which was prosecuted by the U.S. and resulted in conviction for war crimes:
A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned. This procedure was sometimes repeated 5-6 times in succession.
Compare this to the technique used by U.S. officials:
The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.
If there is a difference between the two, I'm not sure what it is.
In this diary, I have not attempted to make any policy arguments against torture. Furthermore, this is by no means a thorough legal analysis of the issues relating to detainee treatment and torture. I am NOT an expert in the field. I am a 3rd year law student. However, I believe that when debating this issue with people such as Ronald Kessler, simply making the claim that "torture produces bad information" is not effective. On the Daily Show, Kessler claimed that "The important thing is...we have not been attacked. It’s because of these measures, it’s because of the Patriot Act, even though that’s demonized..." It is difficult to argue with this claim on policy and intelligence grounds because the average person simply does not have the information available to him to be able to effectively refute it. If someone truly believes that waterboarding has prevented attacks on the U.S., no policy arguments will convince them otherwise. That is not to say that the policy arguments against torture are irrelevant (for a wonderful collection of them, see this month's Washington Monthly). When all is said and done, the argument most likely to carry the day is not the one that says torture is immoral, or ineffective. The argument that will win says that torture is illegal...always.
UPDATE: I should have mention that the torture convention's definition of torture says that it must be inflicted
"for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
This means that using the waterboarding technique for military, law enforcement, and intelligence training is not considered torture. I do not believe this affects my argument.