Unconventional Rules

The question of how the United States is treating, or mistreating, prisoners captured in the war on terror has been simmering for some time. Indeed, it has been an issue ever since George W. Bush’s post-9/11 speech, when he committed the United States to a global fight against terrorism, a fight that more recently has been refocused as a battle against Islamic extremism. The question posed then remains unanswered: How will military and civil authorities adjudicate the cases of prisoners taken in this new, unconventional conflict?

Immediate precedents were ambiguous at best. For example, Great Britain’s handling of prisoners taken during military and intelligence operations in Northern Ireland inspired a human rights furor and backfired by serving as propaganda for the I.R.A. Recruiters from that organization described in detail the abuses visited upon detainees and prisoners in Northern Ireland’s notorious Long Kesh prison, where many I.R.A. members (and their Loyalist paramilitary antagonists) were held. Those abuses, and a justice system that seemed grossly mislabeled, helped to swell the I.R.A.’s numbers in the 1980’s.


Then there is the question of precisely what a terrorist is. Margaret Thatcher famously stated that there is no such thing as a political crime. Murder is murder is murder, she said in justifying a policy that saw no difference between a member of an outlawed paramilitary organization and a run-of-the-mill killer.

The policy was designed to deny the I.R.A. a distinction it desperately wanted. It considered itself at war with Great Britain, and it demanded that its prisoners be treated as prisoners of war. By treating them as common criminals, Mrs. Thatcher displayed her contempt for their tactics and their claims. The famous Irish hunger strikes of 1981, during which 10 prisoners starved themselves to death, was undertaken in an attempt to win political status for I.R.A. prisoners, most of whom were convicted of various offenses in a special jury setting.

The American dilemma is similar to Britain’s. The specter of military tribunals to judge the innocence or guilt of terror suspects suggests the possibility that terrorist suspects will be treated as special cases. If that happens, are we not then agreeing with the terrorists that they are, in fact, legitimate combatantsand not outlaws?

The United States reportedly attempted to finesse this issue by building special jails in Eastern Europe and elsewhere to detain terror suspects, and perhaps do a good deal more to them as well. This will do nothing to enhance the country’s image in the Arab/Muslim world, where the Abu Ghraib scandal and purported conditions in the detainee camp in Guantánamo Bay already symbolize supposed U.S. hypocrisy on human rights.

Just as the I.R.A. turned Long Kesh into a metaphor for British rule in Northern Ireland, so too are Muslim extremists using U.S. policies toward prisoners as a rallying cry and call to arms.

Perhaps it is too late to change any of that. But surely it is not too late to think through our detention policies and reform the way we deal with these unconventional prisoners. After all, there is every indication that we will have them on our hands for a long time to come.

The media tend to lump together all captives taken in the war on terror as terror suspects. Thus, a young man taken prisoner during a firefight in Iraq is not different from a would-be suicide bomber captured on an American street, or a suspect believed to be raising money for terrorists through a seemingly legitimate business.

All terror suspects are not the same. A young man captured during a battle in Iraq or Afghanistan does not pose a threat to civilians in the United States and surely cannot tell U.S. intelligence much about what Osama bin Laden may be thinking.

Could the case be made that such a prisoner ought to be entitled to all the privileges accorded prisoners of war under the Geneva Conventions? Why not?

It goes without saying that U.S., British and allied forces in Iraq and Afghanistan are fighting an unconventional war against an unconventional enemy. The insurgents in both countries do not wear uniforms; they engage in suicide attacks; and they often use civilian cover for their operations.

But the irregular status of an insurgent captured in either country does not necessarily make him or her a terror suspect. If such insurgents are captured while engaged in battle with U.S. forces, they would seem to fit the description of a legitimate combatant, no matter how much we may disagree with the cause they are upholding. After all, we treated soldiers of the barbaric Nazi regime as legitimate prisoners of war.

What of the men and women who may be plotting a round of terror attacks in the United States or in another country? What are we to do with suspects picked up before they can execute some evil attack on American civilians?

They clearly are a different case entirely. When captured, they may possess valuable information that may save countless lives. What are we to do with them?

Nobody, it seems, has the answers. That is not surprising, because these are difficult issues. What does seem clear is that we cannot continue the policies we have been following. By abusing prisoners and by not discriminating between insurgents and terrorists, we are unwittingly confirming the libels heaped upon us by the likes of bin Laden.

That certainly does not help the cause of democracy, freedom and liberty.

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