Statelessness and Humanity

Over at John Schwenkler’s joint, J.L. Wall addresses the problem of the Geneva Conventions as they apply to enemy combatants. John and I went back and forth on this earlier in the year, and I don’t particularly want to revisit all that; we have a fundamental disagreement on how roughly prisoners can be treated in the execution of the war on terror.

More specifically, J.L. thinks that the legalese employed by the Bush administration and its apparatchiks is intended to deny enemy combatants of their basic humanity. If you make terrorists the “other,” you don’t have the responsibility to treat them with basic human decency is, I think, his basic point. Writes J.L.:

The purpose of declaring someone “stateless” is to cast them outside the purview of the law. When we say that we can treat detainees differently not because they are not American citizens-and therefore do not have American rights-but because they are “stateless” and are therefore outside the protection of the law; that because of their statelessness, a different standard of what is humane applies, we are, in essence, dividing humanity into two classes before the eyes of the law.

I don’t think this is quite right, but I’m not sure if I can articulate why. Let’s see if this makes sense to anyone other than myself…

The problem with enemy combatants–the people we pick up on the battlefield who wage war outside of the acceptable conventions of warfare, a number of whom are being held at Gitmo and are profiled in this Thomas Joscelyn piece–is twofold. The first is a question of legality, which is where talk of Geneva, war crimes, and Bush/Cheney spending the rest of their days at the Hague comes up. The second is a question of morality, whether it is right to treat enemy combatants in the manner with which they have been treated.

I’m not a lawyer, but I think it’s pretty clear that through their actions enemy combatants have shown that they don’t deserve protection under the Geneva Conventions. (I laid out the basic points of that argument here.) The Geneva Conventions were designed to be a two-way street, an agreement amongst civilized people that certain tenets of warfare had to be respected, including POW and civilian treatment. The people we are holding at Gitmo are people have violated those tenets. The people who engineered terrorist attacks across the globe have violated those tenets. They do not deserve the (many) protections granted by Geneva.

The second question, the moral one, is trickier. How much leeway should we show these monsters. This is the problem J.L. is getting to in his post, I think, but he’s conflating it with questions of legality. He sees the legal machinations of Bush and co. as a means of skipping out on the moral questions we have to grapple with in this new world.

I, however, would make this argument: 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. If our president is faced with the choice of granting enemy combatants and murderous terrorists “their status as human beings” or doing things that should be done to no human in order to save the lives of innocent civilians, I hope he chooses the latter option. I’m glad Bush did so in those chaotic days and months after 9/11, and I hope Obama does so in the future if he’s ever forced to make that terrible choice. His selection of Eric Holder for AG gives me some hope that he won’t be quite as squeamish as some of his allies when it comes to protecting civilians around the world from terrorism.