A reasonable person who understands and respects American ideals could never write what will surely follow this:
The Geneva Conventions of 1949 govern the treatment of lawful combatants and civilians during wartime. But now a new Pentagon memorandum concludes that Common Article 3 of the Conventions also governs the treatment of unlawful combatants: pirates, drug mafias and especially terrorists. So, five years after 9/11, the U.S. is about to give to people who ram commercial jets into buildings many of the same legal privileges and immunities as the average GI.
Framed that way, it’s easy enough for the non-thinking right-thinking American to be appalled at the Supreme Court’s Hamdan decision. That frame is wrong. The sub-title to the Opinion Journal’s editorial implies that we’re now giving legitimacy to terrorists. We’ve done no such thing. The Supreme Court’s proper decision that America is subject to the Geneva conventions is about re-legitimizing our adherence to trusted and tested principles, not giving some special recognition to mass-murdering lunatics. The heinous nature of their crimes should not alter how we treat them in captivity.
What the world needs is a new legal framework for distinguishing between legal and illegal combatants, but instead we are now heading toward the European model where terrorism is seen as just another fact of life and not a unique evil or grave threat.
I’m open to the case about legal versus illegal combatants, although we’re discussing war, so a man with a gun is a man with a gun. What I want to hear to be persuaded is how the differences matter in law, how we’ll decide who is illegal, and what we’ll do to captured prisoners who receive “illegal” status. Torture is not acceptable, again because it is too reprehensible for us to commit. The tortured is irrelevant. I will never concede this point.
The appropriate questions are simple to agree upon. For example, should illegal enemy combatants be held indefinitely until hostilities are concluded? If so, how will we know when the war is over? If we believe enemy combatants without ties to a specific nation are a threat, and we have proof, we should try them in a court of law. The assumption of future aggression against the United States by such combatants after the war is well-founded, but that indicates permanent incarceration for such initial war-making. That should be imposed through a structured system of justice. If we can prove their guilt, that is a reasonable solution. Because its implementation would be neither easy nor expedient is not reason to avoid it.
Instead of silly amendments and false proclamations of adherence, the President should adhere to his responsibilities as spelled out in the Geneva Conventions (and the Constitution). The Congress should not alter his responsibilities because he finds them burdensome.