www.ErikSvane.com

     In response to an article in the International Herald Tribune calling the fate of the Guantánamo Bay detainees "A monstrous failure of justice", Kevin Edward Moley, the permanent representative of the United States to the United Nations and other international organizations in Geneva, chose eight of the most important points from Lord Johan Steyn's article before responding to them one by one. Here are five of them.

• "How prisoners at Guantánamo Bay have been treated we do not know."
     Yes we do. They have extraordinary health care, the same as U.S. troops get; their menus accommodate their cultural and religious preferences; they have exercise opportunities; they are provided liturgical necessities and daily opportunities for religious expression; they have the ability to send and receive mail. … International observers from the Red Cross are given access to the detainees at Guantánamo and several foreign government representatives have visited their nationals as well.

• The detainees at Guantánamo Bay Naval Base are "foot soldiers of the Taliban."
     The decision to send a detainee to Guantánamo is not taken so lightly. Of 10,000 fighters detained in Afghanistan over two years by coalition forces, less than 700 have been sent to Guantánamo. More than 9,000 of those detained in Afghanistan have been released. Those who are sent to Guantánamo are held because they are of significant intelligence value or they pose a continuing danger to Americans and people from many other countries. Many detainees have made it unmistakably clear they will mount more attacks if let go.

• "By a blanket presidential decree, all the prisoners have been denied prisoner-of-war status."
     It wasn't by presidential decree that they were denied status as prisoners of war under the Geneva conventions, it was by their failure to do the things lawful combatants are required to do, such as distinguishing themselves from the civilian population (to avoid endangering legitimate noncombatants), following the rules of war, and operating within a system of accountability [see notably Article 4 of the Convention relative to the Treatment of Prisoners of War and Article 5 of the Convention relative to the Protection of Civilian Persons in Time of War].
     Indeed, giving prisoner-of-war status to unlawful combatants would undermine the Geneva Convention on Prisoners of War. Military organizations that ignore or flout these rules shouldn't expect to collect the law's benefits. (If they are led to believe otherwise, what incentive is there for other military forces to keep up the soldier's end of the bargain?) The Taliban and Al Qaeda fighters detained at Guantánamo were not entitled to prisoner-of-war status as a result of the choices they made as fighting organizations in waging war.

• Guantánamo is a "black hole" where prisoners will be left "indefinitely."
     Not so. The United States is constantly and exhaustively reviewing the continued detention of each detainee. We are always looking at ways to expedite the detainee review process to make it more efficient. Detainees who we are confident won't return to the fight are released. Scores have left Guantánamo on this basis already. More are expected to be released soon. Although the law of armed conflict establishes the right to detain combatants, lawful or unlawful, for the duration of the conflict, the United States has no interest in keeping a Guantánamo detainee any longer than necessary, as borne out by the releases and transfers that already have occurred.

• "The purpose of holding the prisoners at Guantánamo Bay was and is to put them beyond the rule of law, beyond the protection of any courts ..."
     The purpose of the detention at Guantánamo Bay is to defend ourselves, to keep Al Qaeda and Taliban fighters from attacking us. The taking of prisoners in war has long been justified on this ground. And this is, after all, a war; a non-conventional war, yes, but still a war …

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"Alas, there is no government that can 'demobilize' the terrorists"

     Two weeks earlier, a professor of international law and diplomacy at the Johns Hopkins School of Advanced International Studies also took issue with Johan van Zyl Steyn's claims, pointing out some noteworthy similarities with World War II. Also a senior fellow at the Council on Foreign Relations who served as an adviser to the Pentagon on implementing rules for war crimes trials in military commissions, Ruth Wedgwood makes a simple appeal that can hardly be said to be without merit: "Let military rules apply while the war goes on".

     "Two years after the attacks of Sept. 11, 2001, why should armed combatants captured on the Afghan military front not be immediately released?" she asks, quoting Washington-doubters' rhetorical questions. "Maybe, just maybe, because they would return to the fight … The Qaeda-Taliban war against the West is a dreadful event. Alas, there is no government that can 'demobilize' the terrorists …

     "International humanitarian law recognizes the right of a commander to intern captured enemy combatants, for the duration of the conflict. Without any basis, Lord Steyn supposes that 'Taliban foot soldiers' — rather than Qaeda members — predominate at Guantánamo… In the 50 footnotes of his written lecture, Lord Steyn does not bother to describe the trial procedures of the military commissions, preferring to baldly assert that 'none of the basic guarantees for a fair trial need be observed.' The trial procedures are published on the Web, and the reader may prefer to see them at first hand (www.defenselink.mil/news/commissions.html)."

     The law professor, who is also serving a four-year term on the United Nations Human Rights Committee, then brings the situation into perspective: "Four hundred thousand German and Italian prisoners of war were held in the continental United States during World War II. The federal courts did not undertake the wholesale review of the commander in chief's battlefront captures.

     "Lord Steyn may wish to note that there is indeed a declared war — Congress authorized the president's use of force against Afghanistan and Al Qaeda in a joint resolution on Sept. 18, 2001. NATO and the United Nations Security Council also found that Al Qaeda's terrorist attacks amounted to 'armed attacks' under international law. Congress has consistently acknowledged the authority of the president to use military commissions to try war crimes, especially during the debates on the court martial system. Most of the crimes of the Nazis in Europe were tried by military commissions, by the British and Americans alike"…

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"European Leaders … Gratuitiously Inflaming
World Opinion by Monstrous Distortions"

     Already within a couple of months of the first arrival of prisoners at Guantánamo Bay, The Economist, in its traditional way, saw the barrage of criticism for what it was: Stating that "exaggerated criticism has taken the place of reasonable doubt", it called accusations of torture and ill treatment, "to put it mildly, unsubstantiated" and "unfounded", suggesting that the best adjective to use might be "bogus". "Unless Cuba's balmy weather is intolerable to fighters who have spent the winter in Afghan caves, the charges don't stand up." Evidence suggests, instead, added the London weekly, that "the European reaction may have more to do with anti-Americanism among the elite than any deep-felt revulsion" among the people.

     Although the 160-year-old magazine was fair and even-handed (as always) — it said that "Neither Europe nor America emerges well from the row about Guantanamo Bay" (members of the Bush administration were criticized for their "insouciance" and it warned that "the arrogant dismissal of legitimate concerns could be stirring up unnecessary problems abroad") — the January 26, 2002, article ended with a sentence whose message couldn't be clearer: "European leaders should not be gratuitiously inflaming world opinion by monstrous distortions."

Three and a half years later, the Wall Street Journal added:

Two persistent sources of confusion in this debate have been misreadings of the Geneva Conventions and sloppy (or willfully distorted) use of the word "torture." The Geneva Conventions are very strict about which detainees qualify for the protections of "prisoner of war" status: They must, for example, have fought in uniform and shown some respect for the laws of war, such as avoiding attacks on civilians.

What's more, any form of manipulation, including positive reinforcements such as better rations, are forbidden when it comes to interrogating legitimate POWs. Recognizing guerrillas and terrorists as POWs would be a form of unilateral disarmament, and, worse, would legitimize their behavior. The U.S. was respecting, not skirting, international law when it refused to classify them as such.

As for "torture," it is simply perverse to conflate the amputations and electrocutions Saddam once inflicted at Abu Ghraib with the lesser abuses committed by rogue American soldiers there, much less with any authorized U.S. interrogation techniques. No one has yet come up with any evidence that anyone in the U.S. military or government has officially sanctioned anything close to "torture." The "stress positions" that have been allowed (such as wearing a hood, exposure to heat and cold, and the rarely authorized "waterboarding," which induces a feeling of suffocation) are all psychological techniques designed to break a detainee.

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Short Appendix

Geneva Convention relative to the Treatment of Prisoners of War

Article 4
   A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
   1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
   2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
   (a) That of being commanded by a person responsible for his subordinates;
   (b) That of having a fixed distinctive sign recognizable at a distance;
   (c) That of carrying arms openly;
   (d) That of conducting their operations in accordance with the laws and customs of war …

Convention relative to the Protection of Civilian Persons in Time of War

Article 5
   Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
   Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
   In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.