POW Rights Are Our Rights

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In case you never heard of it, the Investor’s Business Daily (IBD) is a daily financial newspaper. It’s a rival of the Wall Street Journal with a circulation of at least 215,000 and ranks in the top 50 dailies in the U.S. The paper was founded by Bill O’Neil, a stock market trader and newspaper entrepreneur.

Mr. O’Neil’s editorial page, reliably neoconservative, wholeheartedly endorses the Bush administration’s "war on terror," Iraq War, "war on tyranny," and any other wars that our rulers may embroil the country in next. IBD’s editorial writers are war mongers. The typical editorial is something like "Syria Up Next" or "Iran in the Crosshairs."

The reason given for IBD’s positions is often the security of Americans, despite the fact that the toll on American lives grows day by day. IBD writers do not understand that wasting resources in futile foreign wars leaves us less able to buy security at home where it may be in demand. They do not grasp that as these wars generate more enemies willing to die for their cause and anxious to mount massive attacks on U.S. soil, our security diminishes.

Rights rank low on the IBD scale of values. The lives of foreigners lost in "collateral damage" count for little or nothing to IBD except perhaps a ritual word of regret now and then. In IBD’s outlook, the safety of Americans is first, and that can be purchased by violating the rights of others with impunity. The rights of Americans also count for little in their view; they’d regard a few more Patriot Acts as an improvement. No wonder then that the rights of "suspected terrorists," "enemy combatants," and prisoners of war rank yet lower or even are non-existent in IBD ethics.

Support of President Bush and Republicans also helps explain IBD’s positions. Their editorial page fights constant war against Democrats. Ergo they support Bush to the limit and beyond.

The usefulness of reading IBD editorials is that they are so openly extreme. They show clearly where neoconservative thought leads, and that is away from rights and toward totalitarianism. They are a signpost to the depraved levels that supposedly informed and civilized American thought can sink, and that is to non-justice and then atrocities. The IBD editorials are a mirror held to the souls of war-making Americans among us, reflecting a repulsive and vicious image. Bit by bit, the IBD writers are becoming the repugnant word-smithing clones of the Abu Ghraib debasements.

On November 3, 2005, the editorial page of IBD sank to a new moral and ethical low in its editorial "The Good Gulag." While others may shrink from associating the term "gulag" with the behavior of Americans, IBD revels in it: "We’d do well to remember that in the immediate aftermath of a barbaric attack on our homeland, this administration knew the best place to keep rabid terrorists: the Gulag."

Should we be proud of a budding American gulag? The Soviet gulag was a system of prison camps that used forced labor under extremely bad conditions. Those imprisoned were catch-all suspects, political dissidents, criminals, religious dissenters, and prisoners of war. The camps were convenient dumping grounds for anyone that officials wanted out of the way. Millions were placed in slave labor under severe conditions, and at least one million died early deaths from cold, privation, starvation, overwork, disease, beating, and anguish. America isn’t there yet, but why even make a beginning? Once the die is cast, who knows what horrors will eventually follow?

IBD’s "Good Gulag" editorial responds to a Washington Post story dated November 2, 2005. The Post story began with these words: "The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement." IBD refers to it as "undoubtedly part of the infamous Gulag and the slave-labor camp systems that extended throughout the Soviet Union and into Eastern Europe."

A decent reaction to this revelation might be disgust and horror, that is, if one has a mind that is attuned to rights and can sense what an official American gulag means and can lead to. IBD’s applause encourages a descent to barbarity. Neoconservative views when placed into practice take us straight down, away from civilization and toward barbarity. If there is any lingering doubt of this, IBD provides a leading and clear example. Hear their words:

"It means the methods of interrogation used by American and foreign intelligence agency personnel at these sites — which some may consider borderline torture — are saving the lives of innocent Americans and others who live in democratic countries. Grilling al-Qaida members as long as necessary, and without the equivalent of an ACLU lawyer standing watch, is vital if we’re serious about fighting this new enemy." Borderline torture? As long as necessary?

We can consider how the military and the CIA are treating their prisoners either in light of traditional political rights or natural rights. For example, Americans have a political right to a trial by jury, but this is not a natural right since no person has a right to coerce others to act as a jury. No matter how we look at it, we observe a trend of obliteration of both political and natural rights.

Americans recoiled against the North Korean and Chinese Communist treatment of American war prisoners during the 1950 Korean War, which included sleep deprivation and brainwashing to break prisoners. Our rulers in 1949 had signed the Geneva Convention relative to the Treatment of Prisoners of War (GPW). This details political rights of prisoners or soldiers who have laid down their arms or been captured.

Article 3 of GPW outlaws "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" of POWs. Not to be so treated is also a POW’s natural right. Any aggressions upon prisoners are wrong unless their guilt is established. Article 3 outlaws "humiliating and degrading treatment," which also violates an accused person’s natural rights. Article 3 calls for no passing of sentence and execution of POWs without the judgment of a court that affords judicial guarantees. The thrust of this is consistent with natural rights.

We can say that violations of Article 3 of the Geneva Convention are wrong because they entail violating the natural rights of POWs. In addition, if our rulers violate these provisions of the Geneva Convention, then: (1) Those fighting us may consider it as their right to mistreat, torture and kill our captured or injured soldiers or others whom they regard as supporting them, not only in this war but in future wars. (2) Our rulers lose their moral credibility at home, among soldiers, among allies and with the population they are seeking to win over. (3) The credibility of our rulers as negotiators or in making and signing agreements is undermined and they make less certain all the prior treaties and conventions signed by previous rulers. (4) Our rulers set a poor moral example and encourage us to act in the same way.

Has the U.S. violated the Geneva Convention? Yes, by discarding it altogether for certain prisoners. This is official doctrine of the Bush administration. Early on, Rumsfeld, on January 11, 2001, said that captives in Afghanistan were not prisoners of wars but "unlawful combatants" and that "unlawful combatants do not have any rights under the Geneva Convention." The ACLU provides a useful timeline of related actions.

Rumsfeld was incorrect because Articles 3 and 4 make it clear that all sorts of persons captured fall under the Convention’s provisions, and Article 5 says: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

On February 7, 2002, the White House declared that neither Taliban nor al-Qaeda "detainees" are entitled to POW status. Having gone to war, the White House set about various (political) law contortions to deny that those captured were war prisoners. Their success or failure at this denial is largely irrelevant because prisoners still have natural rights. Many were voluntarily associated with an armed group, a part of which had attacked the U.S. This left them open to retaliation by the U.S., to be killed if they resisted or to be captured as prisoners. However, many, probably most, had not attacked the U.S. Some may have been acting in self-defense. Some may have been novices in terrorist training. Some may have committed worse crimes, such as planning the 9/11 massacres. Some may have been in league with those planners or planning more such events.

Justice requires treating POWs humanely and discriminating among them according to any crimes they may have committed. Whoever is taken prisoner still has a right not to be further aggressed upon until a lawful judgment occurs. After World War II, the four powers each de-Nazified in their own ways. The U.S. made a serious attempt to discriminate among various Nazis using many, many tribunals. Current U.S. procedure is simply to hold many captives indefinitely.

Am I defending the natural rights of people who may have had the intent of blowing up Indians or Brits or Americans, or who may have planned and plotted and trained to do so? Absolutely. I am defending their natural rights. Either treat them as POWs or as criminals, but do not hide them away in a gulag. Today, it’s their gulag. Tomorrow, it’s your neighbor’s. Suddenly, it’s yours.

Even if some of their group blew up the Trade Towers, many had nothing to do with that. They have to be shown guilty of participating in that event, not merely celebrating it. Or they have to be shown guilty of another crime. They are innocent until proven guilty. Possessing arms in remote Afghanistan and firing back on American soldiers are not proof of guilt of anything. The determination of justice in a confused wartime situation in which many soldiers are acting in concert is recognizably going to be difficult, but it is important.

The reason for observing and defending the rights of POWs is the same reason as defending the rights of Americans. The basic issue is this: Does everyone have rights or not? If everyone has rights, then, if accused, a person is innocent until proven guilty. If we do not adhere to that doctrine for some persons because of some "exception," then we encourage those in power to find more exceptions. After a period, the idea that everyone has rights will be discarded. We will then be using the guillotine right and left for whoever is declared without proof an enemy of the people.

The prisoners that the U.S. took in Afghanistan and Iraq, whatever allegiances they may have, possess rights. In other words, the U.S. should abide by Article 3 of the Geneva Convention to which it is a signatory. But our leaders do not agree.

On January 25, 2002, then White House counsel Alberto Gonzales recommended the action taken of setting aside the Geneva Convention. His memo mentions the Department of Justice’s opinion that the GPW does not apply to al-Qaeda and the Taliban. He supports this view based in part on "the ability to quickly obtain information from captured terrorists and their sponsors…" He adds that this new type of war "renders obsolete Geneva’s strict limitations on questioning of enemy prisoners…" There is no logic here, only the voice of expediency.

Then he notes that there is a 1996 U.S. law called the War Crimes Act that makes it a war crime for a U.S. official to violate the Geneva Convention specifically mentioning "…any violation of common Article 3 thereof (such as u2018outrages against personal dignity’)." He says that the way to avoid this trap, whose violation calls for the death penalty, is for the President to declare that the Geneva Convention does not apply in this instance. There is logic here, namely, let us cover our a**es.

How wonderful to have power! One simply makes up law as one goes along. If the Geneva Convention is in the way, toss it. Declare it inapplicable. This may take a bit of manipulation and distortion of legalities and the English language, but what are inventive White House counsels good for if not getting around laws?

We continually experience endless changes in our domestic laws (such as tax law) that make a mockery of the word "law." Witnessing the same phenomenon in the international arena should not surprise us. What does this mean? Most laws of the United States are not laws at all; they do not accord with natural law. They are arbitrary decrees, edicts, fiats, orders, and dictates. They are nothing more than one group imposing on another group arbitrarily. Our domestic laws invade individual rights at every turn. To observe that the rights of suspected terrorist prisoners are invaded is only to observe that which routinely happens to us as U.S. citizens.

The Gonzales memo makes clear either his intent or those of other high officials to extract information from POWs by means of torture. Of course, the methods used would supposedly be modern ones, ones that did not leave scars or break bones. Pushing a man’s head under water and holding him there might be too old-fashioned to do the trick. Sensory deprivation like hooding detainees, sexual humiliation, electric shock, and stress positions are more up to date. If some interrogators get carried away at times, excuses and cover-ups cannot be hard to come by. What’s another corpse, here and there? One can always limit the damage to low-level functionaries and subordinates.

As his reward, Alberto Gonzales was confirmed Attorney General of the United States on February 3, 2005 by a 60-36 vote of the U.S. Senate.

By November 27, 2002, Rumsfeld was signing off on a memo whose subject was very specific "counter-resistance techniques" of interrogation to be used by the U.S. military. "Stress-positions (like standing), for a maximum of four hours" were not enough. Rumsfeld signed off writing "However, I stand for 8—10 hours a day. Why is standing limited to 4 hours?" No detail is too small for the great mind running the Department of Defense. Other techniques included deprivation of light and sound, 20-hour interrogations, removal of all comfort items (including religious), no hot rations, removal of clothing, forced shaving and cutting of hair, and using phobias "such as fear of dogs." Shades of Winston Smith’s fear of rats in the novel 1984.

We are far beyond the nave model of official behavior taught in high school civics books that depicts elected officials as devoted public-minded citizens of high repute who are and should be above reproach, who are our leaders, and who should bend over backwards even to avoid the appearance of inappropriate behavior.

All right, no one’s perfect. I make many mistakes. I know very little. But how much does any one of us have to know to use some basic common sense? Since when is it right to isolate, hide, and torture anyone in order to gather information, even someone declared a non-POW? The ACLU has launched a lawsuit against Rumsfeld on behalf of 8 plaintiffs who aver torture at the hands of their U.S. captors.

The whole White House idea was and is to create an escape hatch that allows the extraction of information. Try to pretty it up any way you want, as a noble cause against heinous enemies who have harmed us and intend far more harm, or as an essential means of extracting critical information from unwilling enemies. It doesn’t take much imagination to write such scripts. They still carry the ignoble stench of rotten ideas. They still lead us downwards to Abu Ghraib, Bagram, and CIA black sites.

The 11/27/02 memo did not recommend approval of more stringent techniques such as persuading the prisoner of imminent death to him or his family, "exposure to cold weather or water, use of a wet towel and dripping water to induce the misperception of suffocation," and mild poking, grabbing and pushing. However, these are approved for CIA use on prisoners held overseas, another legal technicality.

Why is the CIA involved at all in holding captives? Are these captives prisoners of war, or are they criminals? Or do they fall into the nether category of "enemy combatants" who are held indefinitely with no rights at all? Why are these captives held in secret? Why did the CIA hide them? What high American officials are responsible for all this? How far did the interrogations devolve into torture? When will our rulers push the CIA or some other domestic intelligence agency into imprisoning suspicious Americans under similar conditions and circumstances? What sort of precedents do such extra-legal activities establish?

Each of these questions arises from considering basic American ideas and ideals: that rights mean something even for criminals and prisoners, innocent until proven guilty, speedy trial, Geneva convention, open and accountable government, rule of law, no cruel and unusual punishment, habeas corpus. These rights mean little or nothing to such men as the IBD editorial writers who reflect and parrot our highest public officials. Drawing from the Post’s description of CIA reservations, IBD writes: "Within the CIA, there seems to be some serious hand-wringing over the idea of interrogators practicing their craft in places where they’re not constrained by the U.S. Constitution. But the first reaction to this news should be praise."

Bush and his men wanted to extract information. They therefore set aside the Geneva Convention for those captured in Afghanistan and perhaps others in Iraq or elsewhere. They declared themselves as not legally at war with al-Qaeda. If these captives are not POWs, then they are criminals. That means that a court should be found to try them. There are many courts, so that is not a large problem. However, Bush did not want them to be treated as criminals either, because criminals also have rights. The fabricated legal solution was to declare them as neither, as "enemy combatants," or "unlawful combatants." Not only this, but Bush has maintained that he has the authority to declare Americans as enemy combatants, which is another story that has been addressed by, among others, Hornberger and Silverglate.

A Taliban fighter, say, is aggressing or he is not. If he is captured, he has rights. To deny a trial for years on end while keeping someone locked up and isolated is tantamount to convicting and punishing them without a trial. This is aggression by the captors. To torture them is aggression by the captors. To imprison and cruelly mistreat innocents who happen to fall prey to their captors is aggression. By contrast, IBD writes: "And what more effective manner of extracting information from those sources [captured al-Qaida operatives] than placing them in situations in which they have no option but to cooperate?"

In the Hamdi, Padilla and Rasul cases of June 28, 2004, the Supreme Court at least slowed down, if only temporarily, Bush’s destruction of rights of an accused, at least on territory under U.S. jurisdiction. This left Bush with the CIA’s gulag operated overseas in conjunction with foreign governments and/or intelligence agencies. Some in the CIA are so worried about prosecution for their torture that Cheney and Porter Goss, the CIA chief, last month "asked Congress to exempt CIA employees from legislation already endorsed by 90 senators that would bar cruel and degrading treatment of any prisoner in U.S. custody."

The Post writes: "The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials." Members of Congress fund the CIA. They know what it does. They know when the CIA does its dirty work of overthrowing Mossadeghs, attacking Bays of Pigs and such. They know what it’s up to now. The CIA is to our rulers as Murder, Incorporated was to the Cosa Nostra.

Take your choice. If POW rights are our rights, then destroying their rights risks the destruction of our rights by our rulers. They will find pretexts for suppressing Americans who do not know or do not care about their rights enough to protect them. Civilization and rights will survive if they are deeply embedded in our culture and values. To let our rulers gradually chip them away when we are not looking risks their loss and our survival.

Michael S. Rozeff [send him mail] is the Louis M. Jacobs Professor of Finance at University at Buffalo.

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