By Niall Ferguson, www.JewishWorldReview.com

In late September, both houses of Congress approved a bill — the Military Commissions Act — that would permit the indefinite, extrajudicial incarceration of terrorist suspects and their interrogation using torture in all but name. Does that sound shocking? What’s really shocking is that this was a compromise measure.

The president signing this bill into law brings into existence a category of detainees: “unlawful enemy combatants” who, regardless of their nationality, are liable to summary arrest.

Those detained will not have the right to challenge their imprisonment by filing an application for a writ of habeas corpus. When — or rather if — they are tried, it will be by military tribunals. Classified evidence may be withheld from the accused if the tribunal judges see fit.

At the very least, it has the potential to extend the scope of American martial law far beyond the cellblocks of Guantanamo Bay.

Leave aside for now the question of habeas corpus; after all, prisoners of war have traditionally been denied this ancient protection. Much more sinister is Section 8 (“Implementation of Treaty Obligations”), under which “the president has the authority … to interpret the meaning and application of the Geneva Conventions and to promulgate … administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.”

To see what this means, you need to know what the “grave breaches” are. According to Geneva Convention III, Article 130, they include “willful killing, torture or inhuman treatment, including biological experiments” and “willfully causing great suffering or serious injury to body or health.”

Insidiously, therefore, the Military Commissions Act empowers the president to authorize all lesser forms of physical and mental intimidation of prisoners. Suffering and injury are fine, in other words, as long as they aren’t “great” or “serious.”

It is easy enough to understand why most members of Congress assented to this. Five years after 9/11, Americans remain intensely hostile toward anyone who might even be suspected of involvement in terrorism. Not for the first time, war fever is encouraging Americans to set aside the fundamental principles of individual liberty on which the United States was founded. Those who opposed the bill were accused of “coddling” terrorists.

History, however, provides a powerful counter-argument. It is that any dilution of the Geneva Convention could end up having the very reverse effect of what the administration intends. Far from protecting Americans from terror, it could end up exposing them to it.

THE FIRST Geneva Convention governing the humane treatment of prisoners of war was adopted in 1929. It is not too much to say that it saved the lives of millions. In World War II, about 96 million people served in the armed forces of all the belligerent states, of whom more than a third spent at least some time in enemy hands. The majority of these were Axis soldiers who became prisoners when Germany and Japan surrendered. Luckily for them, the Allies upheld the Geneva Convention, despite the fact that the Axis powers had systematically failed to do so.

Official Japanese policy encouraged brutality toward prisoners of war by applying the Geneva Convention only mutatis mutandis (literally, “with those things having been changed which need to be changed”), which the Japanese translated as “with any necessary amendments.”

The amendments in question amounted to this: Enemy prisoners had so disgraced themselves by laying down their arms that their lives were forfeit. Indeed, some Allied prisoners were made to wear armbands bearing the inscription “One who has been captured in battle and is to be beheaded or castrated at the will of the emperor.” Physical assaults were a daily occurrence in some Japanese POW camps. Executions without due process were frequent. Thousands of American prisoners died during the infamous Bataan Death March in 1942.

Elsewhere, British POWs were used as slave labor, most famously on the Burma-Thailand railway line. Attempting to escape was treated by the Japanese as a capital offense, though the majority of prisoners who died were in fact victims of malnutrition and disease exacerbated by physical overwork and abuse. In all, 42% of Americans taken prisoner by the Japanese did not survive. Such were the consequences of “amending” the Geneva Convention.

Supporters of the bill may still shrug their shoulders. After all, George W. Bush is no Tojo. Well, maybe not. But even if you don’t see any resemblance between Bush’s “administrative regulations” and Imperial Japan’s “necessary amendments” of the Geneva Convention, consider this purely practical argument: As Winston Churchill insisted throughout the war, treating POWs well is wise, if only to increase the chances that your own men will be well treated if they too are captured. Even in World War II, there was in fact a high degree of reciprocity. The British treated Germans POWs well and were well treated by the Germans in return; the Germans treated Russian POWs abysmally and got their bloody deserts when the tables were turned.

Few, if any, American soldiers currently find themselves in enemy hands. But in the long war, that may not always be the case. The bottom line about mistreating captive foes is simple: It is that what goes around comes around. And you don’t have to be a closet liberal to understand that.


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