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On Tuesday former Attorney General Michael Mukasey attempted to justify America’s military commissions, and did so extremely dishonestly. For instance, he conflates Guantánamo detainees with those “accused of the Sept. 11, 2001, attacks” when it is now clear they are largely nothing of the sort. Instead it appears to be a hodgepodge of victims of tribal score settling, low level functionaries with (at best) tangential connection to al Qaeda, soldiers swept up on battlefields, hapless schmucks who were in the wrong place at the wrong time, and a sprinkling of America-hating leaders.
The entire piece is filled with with similarly weak or misleading assertions. My favorite is when he defends the commissions by noting that “those who conspired to assassinate President Abraham Lincoln and others in government were tried before a military commission and hanged as war criminals, even though the Civil War was over [not true] when they acted.” What did that tribunal look like?
The case against some of the conspirators (Lewis Powell and David Herold) is generally thought to have been compelling, while other cases (Michael O’Laughlen Mary Surratt and Samuel Mudd) were much more dubious. There were no appeals and executions happened quickly after conviction. In fact, President Johnson suspended habeas corpus for Surratt to expedite her hanging. Overall it comes across as a hurried formality, a speed bump on the inevitable path to the executioner. The country was obviously traumatized and perhaps more interested in vengeance than justice, but how does that rush to judgment look with the benefit of hindsight? This is the example Mukasey holds up to justify the current commissions, but if anything provides a more compelling argument against them.
What is most interesting, though, is the outlook Mukasey espouses. The entire article has an extraordinary omission that is most glaring here:
The civilized world has tried over several hundred years to establish rules of warfare so that those who wear uniforms, follow a recognized chain of command, carry their arms openly and do not target civilians are treated as prisoners of war when captured. Those who follow none of these rules are treated as war criminals, not as ordinary defendants accused of ordinary crimes and entitled to far more robust protection than war criminals.
Not once, there or elsewhere, does he mention the Geneva Conventions. Those who support the irregular, improvised process that Guantánamo represents have been terribly inconvenienced by Geneva. Instead of addressing its unambiguous requirements for the humane treatment of detainees, commission supporters have begun to ignore it entirely. That is understandable: there is no way to reconcile Geneva with what America has been doing in its extrajudicial netherworld.
Jonathan Mahler’s The Challenge is the story of Salim Hamdan’s Kafkaesque journey through it. On page 158 Charles Swift, Hamdan’s military defense lawyer, describes how Geneva was expanded in 1949 to include Common Article 3 with the expressed intent of establishing minimum humane standards of treatment even of non-signatories. (See the extended excerpt at the end of the post.) The entire point of adding it was to explicitly reject reasoning like Mukasey’s - that there are certain classes of people who, by not engaging in civilized war (I know, I know), forfeit the right to a minimum level of treatment.
In fact, on page 184 Justice Department Lawyer Peter Keisler makes that point explicit: “Al Qaeda is not a signatory to the Geneva Conventions and this isn’t simply a question of someone’s name on a signature block. They openly defy all the principles of Geneva and under those circumstances, they can’t be legally entitled to its protections, because the essence of the treaty is reciprocity.”
The idea of reciprocity animates the philosophy of people like Keisler and Mukasey. The problem is that under stress one side’s sense of reciprocal treatment may be vastly different from the other’s. It is human nature to overestimate one’s own benevolence and to underestimate others’ - especially if the other is a stranger, even more particularly an adversary. At those moments reciprocity quickly becomes the most miserly estimation possible of what one owes an enemy. That stinginess gets returned and quickly spirals downward.
The alternative is to treat them better than we think they deserve and trust that, however difficult it may be, it is ultimately in our own interest. If nothing else, doing so allows us to make claims on the treatment of our own people. Beyond that, it speaks to our national character, and whether or not we are a tolerant and merciful people. If we choose not to be, we will shrink - and Mukasey shows how small that can be.
Excerpt from p. 158 of The Challenge:
Swift opened with a sweeping observation: that if the history of America’s military commissions had taught us anything, it was that for the trials to be viewed as legitimate, they must champion the rights of the accused. “The civilian architects of Mr. Hamdan’s commission have ignored history, and they’ve selectively read the Uniform Code of Military Justice and the Geneva Conventions with an eye to escaping their mandates rather than following them,” he said.
From here Swift launched into a story that he believed nicely summed up the weakness of the government’s position. It was more a moral critique than a legal one. During World War II, Swift said, the German Army gave prisoner of war protection to U.S., British, and French troops, but not to Russian troops, because they had not gotten around to signing the Geneva Conventions. “So the German argument was, ‘Well, the Russians aren’t POWs. That means they’re not people. That means I can move you into a concentration camp. That means I can gas you. That means I can work you to death in slave labor and summarily execute you, and I haven’t committed a violation against the laws of war because you aren’t a POW.’”
This was Swift’s setup for introducing the specific provision of the Geneva Conventions most germane to Hamdan’s situation. The conventions had been revised and expanded in 1949, in the aftermath of World War II. As the Russian story illustrates, there was a major loophole in the existing language, as it covered only soldiers fighting for nations that were signatories to the treaty. The drafters of the 1949 conventions set out to close this loophole by adding Common Article 3, which established minimum standards for the detention and trial of a much broader class of prisoners - standards, Swift said, that Hamdan’s treatment had failed to live up to.