Rendition, Torture, and the Geneva Convention

A dear friend of mine sent me this article, "Rendition Memo Drafted Days Before Prisoner Taken to Thailand and Tortured," by Jason Leopold in The Publice Record.

My position is this:

1. Terrorists are not entitled to protections under the Geneva conventions: they don't follow it themselves, they don't wear uniforms, they don't have insignia, and they aren't the armed forces of a recognized state (all requirements to fall under the conventions)

2. That being said, I think waterboarding is the limit of interrogation techniques we should use. I don't think waterboarding, or less severe forms of discomfort or humiliation, are out of bounds, for these detainees. I've been through Navy SERE school, and was subjected to various treatments similar to waterboarding that people call torture these days. It was not torture. It wasn't fun, but it wasn't torture.

3. My #1 and 2 above do not apply to members of recognized armed forces (Iran for instance). Then the Geneva conventions would apply.

4. Anyone caught on the field of battle, whether a uniformed soldier or terrorist, does not fall under our criminal justice system, nor are they entitled to any protections under our Constitution. Our constitution protects our citizens against our government. Captured personnel are either POWS (Geneva convention subjects) or detainees. They are not entitled to having charges filed against them or any other type of civil criminal proceeding. POWS are held until the cessation of hostilities.

Detainees are a stickier situation, as evidenced by released Gitmo detainees returning to the battlefield. I completely believe that Gitmo is required for these hardened terrorists to be held indefinitely. I also think military tribunals such as were set up can review detainee cases and those deemed no or little threat could be released. Not every terrorist caught on the battlefield is going to be a 'master planner'. Some might easily be just 'hired guns' and I think the system was in place to handle those cases.

5. I see these terrorists as the worst of the worst. They aren't just fighting our armed forces trying to effect a political outcome 'by a different means'. They are trying to destroy us and our way of life. I think we must combat that with maximum effort. I think that includes
'harsh interrogation techniques' because the information gained may be protecting civilian lives on the homefront, which is paramount.

6. For the case of US citizens caught fighting against us on the battlefield, I think that is an easy case of treason. Case closed, bring on the firing squad.

7. For US citizens caught plotting, planning, or carrying out domestic terrorism (ie, Timothy McVeigh), the US courts and criminal justice system will handle that.

Just to be clear in closing, I don't agree with Yoo's extreme interpretation of the Constitution that because the President is commander in chief he can do anything he wants under the guise of conducting a war. I think he can order US forces to do anything he wants overseas, but Congress still holds the purse strings and provides a check by limiting funds for things (ie, not providing funds to fight in Iraq, say). I think he can conduct rendition, because the detainees never come under the purview of the US court system or congress in that sense.

I am no legal scholar by any means, but that is my understanding of things. Also, I think Obama left himself plenty of operational leeway with how his Executive Order was worded. Don't kid yourself for a minute that he is going to paint himself completely into a corner. There is plenty of room in there to conduct things pretty much the same way as the Bush administration.