I wrote this over the last week or so, scribbling a bit here or there and rewriting whole sections. I've looked at it too much to tell if it even makes sense. The main point, I guess, is that the Hamadan decision just feels bloody unfair. Apologies it is so serious, but I just feel pissy about the whole thing.
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I’m sure all of you heard that the Supreme Court decided the other day that al-Qaeda type prisoners should get the full protection of the Geneva Conventions, the Hamadan case. I’d be surprised, though, if the articles thought through how it would be received overseas, as most likely the press would focus on legalisms and domestic political implications. I will admit that here in Iraq the subject is not on everyone’s lips either – especially the domestic politics part (but that’s another post) – but court decisions like Hamadan and various political statements by politicians do resonate. Ok, very rarely. But they do sometimes.
The initial reaction to Hamadan is one of cynical resignation, mainly to the codification of asymmetrical treatment given to terrorists on the one hand and military and civilian personnel on the other. Really it just cements in law that which we have been approaching in practice: that terrorists of whatever type (nationalist, criminal, millenarian, nihilist, crazed, etc.) who are captured will be treated humanely and with certain rules and rights. Not because it serves any reciprocal or legal purpose (though critics weakly argue those cases), but because it makes us feel better about ourselves. Because it states that we are a civilized people, living under the rule of law (as codified in the Constitution) and that there are things we will not and should not do (and here insert solemn references to rendition, secret prisons or Abu Ghraib). This then has everyone nodding over their rimless glasses and sipping lattes in agreement at how sensible and good we are as a people.
But those rose-colored glasses look a little worse for wear here in Iraq, actually upon close examination the frames are bent, a lense cracked and there’s dust over everything. Oh, and blood too. You see, when you are captured by the enemy over here, you die. 100% of the time. There’s no “name, rank and serial number,” no Red Cross packages and certainly no parade when you come home. Because the only way you come home is in a box, after having been tortured with the utmost savagery and, if you are lucky, then beheaded. Or you can be chopped up with cleavers like those two soldiers a few weeks ago. While that has only happened to a handful of soldiers (thankfully it is very hard to capture one of us), it is sobering to realize the death rate in enemy hands during this war is worse than anything we’ve ever faced before, far worse than Imperial Japan during the Pacific War, those perpetrators of Nanking and the Bataan death march (and remember, I said death rate per prisoner, not total numbers [of course]).
What the Court says to us is this: “Our society will abide by an asymmetrical relationship between ourselves – really meaning you, not us – and our enemies. You must treat our enemies as if they were signatories of the Geneva Conventions; they, of course, will not reciprocate. Indeed, this is true not only for captivity but for fighting the war as well. You, we all agree, can be accused of atrocities and war crimes on the weakest of evidence, every complaint requiring a JAG inquiry and attracting “guilty until proven innocent” press attention. In fact, when we say “asymmetry” we really mean it: you must also wage war perfectly, with no civilians killed in the crossfire, with every mistake in the open and examined under a pitiless press microscope, revealed to all so friends can doubt your resolution and enemies take heart. You will also fight under complicated rules of engagement that limit how and when you can defend yourself, which means more of you will die. That’s’ too bad, but remember, it makes us feel better.
And no, it does not concern us that terrorists do not operate under the same rules, or indeed that they violate every section of the Geneva Conventions at every opportunity, for they (and this part they whisper) are "barbarous, uncivilized people and can’t be expected to know any better." And for that same reason, few of us will call for them to behave like human beings rather than animals. Indeed, some of your fellow citizens will call them freedom fighters, but all that is the price you pay for us being comfortable. And we don't want to hear any complaints, that’s why you signed on the dotted line, eh?”
It is of course a truism that should an al-Qaeda offshoot (I say offshoot because the original organization is destroyed) truly threaten the existence of the United States, and I mean with nukes and the like, then all these humanitarian niceties and carefully worded legal briefs will be so much wasted paper. At a certain point, the military would be ordered to unleash an unprecedented holocaust upon the innocent and guilty alike. Or at least one hopes so. That will probably never happen though, as our enemies aren't smart enough to pull that off.
If it did, though, would we fight to the last breath? Or would we lay our necks upon the chopping block? If we end up like parts of Europe, we'll go meekly into the night.
But those are questions we do not have to ask now. They are far too existential to even be looked at, really, so we avoid the subject in polite conversation, like the drunk looking for his keys under the lamp post because that’s where the light is.
Instead, we pretend that a war between sovereign states and various international criminal organizations with foreign state backing should be fought in the old way. That those enemies should be treated better in captivity than fellow citizens in civilian jails, and that they have better living quarters than deployed combat troops overseas.
No matter that the Geneva Conventions were specifically written to codify reciprocity of treatment, i.e. you treat our prisoners this way, and we’ll treat your prisoners the same way; no, we will abide by the rules of reciprocity even when there is absolutely zero hope the other side will respond in kind (indeed, it is in their vital interest not to respond, as the most brutal killings serve as the best recruitment videos). We will abide by them because we are civilized, and civilized people don’t violate such rules, no matter the cost.
Underneath that initial reaction, however, are two unintentional effects, one real and the other possible. And both have to do with costs. What happens when costs are high? The answer is very simple – people adjust behavior.
So, given the high and continuing costs (monetary, domestic political, international) of holding terrorists at Guantanamo Bay, there may have already been one shift of policy – that of rendition rather than sending new prisoners to Gitmo (i.e. the handing over of prisoners to foreign governments who, it is whispered, can do what they want with them out of sight of the Constitution). But even that common sense approach has attracted criticism, as the press articles about supposed secret prisons attest. So, given those pressures and now the additional push from Hamadan, there be may another shift in policy towards terrorist prisoners. To be more specific, in the “taking of terrorist prisoner.”
Remember, in counter-insurgency warfare, capturing prisoners and their “pocket litter” is very important (much more so than in conventional warfare, where prisoners are relatively of no consequence, except in humanitarian terms), as their interrogation and exploitation allows you to roll up cells and break up secret networks (a la Zarqawi’s friends). Over time, however, and in certain places or against certain foes, it can become less useful to capture terrorists, as the individuals may know little and regulations prohibit you from making them uncomfortable while you ask them questions. So the response, particularly when you know their cell phones and laptops will tell you more than they will, is to not take prisoners at all.
Ask yourself why the Taliban are suffering 40, 60, 80 casualties when we engage them in Afghanistan? Because we don’t need to talk to them. So we don’t. That policy could become widespread.
It is a paradox. The more the courts and the press insist on asymmetry in battlefield etiquette (POW status for them, being butchered like sheep for us), the more we undermine the very conventions on which the Geneva Conventions are based. The failure of reciprocity eats away at the rules of Geneva like acid. The tying of hands by rules and regulations makes the eye cast about for ways to avoid them. “Lets’ see, a pile of rules and trouble if we take them alive? Well, why take them alive? Rubble doesn’t cause trouble.” The more we insist on treating people without mercy as if they deserve it, the less mercy they will receive. This, of course, is the opposite of what the creators of the Geneva Conventions expected or wanted.
The second possible shift may already be happening. When it becomes enough of a disadvantage to wear a uniform, then the uniforms will come off.
There’s no battlefield reason for uniforms, really. They help in identification and solidarity of course, but the real reason uniforms are worn is to indicate that soldiers and police are agents of a legitimate, sovereign government. They come about during periods whenever states establish a monopoly on mass violence. In efforts to control social violence, and encourage stability and prosperity and the rule of law (or at least rule of the sovereign), centralized military strength was used to destroy independent sources of military power (i.e. robber Barons, mercenaries, bandits, criminals, freedom fighters). And those troops and police were agents of the State, identified so by uniforms or badges of office. It made the use of force legal, and it also legally protected the individual, as the soldier or policemen was not acting on their own but on the orders of the State. And as we’ve seen, with those protections comes responsibilities on how to behave, etc.
But if we’ve now said that non-state actors, in non-state groups that have no mechanism for ratifying the Geneva Conventions and who also do not observe the Conventions (i.e. the neck choppers), still deserve automatic qualification as if they were responsible signatories (i.e. just as if they were agents of a legitimate State), then it becomes less and less useful to wear a uniform, to be hamstrung in all the legal ways that non-state actors are not.
The response, in addition to taking fewer prisoners when the gloves do come off, is to give the gloves to someone else. The shedding of mutually respected legitimacy (the root of the Geneva Conventions and international law), as the Hamadan decision illustrates, makes it easier to give the gloves and the dirty work, to “militias”, contractors and other deniable combatants. This has already begun, of course. Can you say peshmerga?
The question is, do we want that to happen?
If we say private warfare is ok, then military entrepreneurs will soon appear (have appeared), and conduct operations around the edges, without rules, without responsibility, without restraint.
Are we there yet? No. Will we get there soon? Probably not.
But the longer the asymmetrical relationship lasts, the more the disadvantaged will seek ways to counter those disadvantages. If there is no incentive to act in restrained symmetry, then why should one?
Like water, power seeks a way out. Interrogations and prison cells are sub-contracted to others; or, instead of taking prisoners, they are given a bullet to the head (What hands? Did you see any hands?); diplomatic niceties are stretched and States flex their power and act in ways unseen for a generation, with targeted assassinations, blockades of cities and the unleashing of militias upon enemies.
Is the answer that one should be allowed to treat terrorists as bandits (ironically codified in the 1949 Geneva Conventions) and simply be allowed to shoot them as unlawful combatants if you want?
Maybe.
But hey, that’s above my pay grade.
Fair Winds and Following Sands!
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