In his essay yesterday, which appeared in Hoover Institution's Defining Ideas, Richard Epstein raised a number of hard questions about the war on terrorism. I agree that the most important issue, after deciding that the 9-11 attacks amounted to an act of war, was which set of rules of war would apply. For me, the Geneva Conventions clearly do not apply. Al Qaeda is not a nation-state, it did not sign the treaties, and it has no desire to follow them. Yet Richard writes,
The United States should have extended the protections of the Geneva Conventions to enemy combatants whether the U.S. was strictly required to or not. That approach would have led to a different attitude toward the question of rendition and torture. It would have led government officials to reject categorically the idea that we could farm out the right to torture to our allies overseas while retaining the right to reclaim custody of prisoners once the torture was over. And it would have led the administration to reject the untenable, narrow definitions of torture that were advanced in John Yoo’s famous torture memos.
I do not see why the U.S. should extend the protections of the Geneva Conventions to terrorists. Al Qaeda fights by violating the basic rules of warfare, which are to not intentionally target civilians and to make sure that fighters are distinct from civilians. We would only be giving al Qaeda the rights and privileges reserved for honorable soldiers for fighting like barbarians. The incentives should be the exact opposite: they should receive humane treatment, but nothing more, unless their behavior changes.
One might argue that the United States should follow Geneva to encourage fair treatment of our own soldiers when they are captured. This is a worthy goal, but I don't think it bears out in practice. Al Qaeda is not going to treat any captured Americans humanely -- it usually executes them on the spot. Our enemies in most wars since the signing of the Geneva Conventions have abused our captured soldiers. And if we fight a war against a China in the future, I don't think that they will treat our soldiers any differently based on how we treated al Qaeda terrorists in a different war in the past.
On the subject of torture, Richard goes on to write,
Try as I might, I cannot bring myself to believe that a statutory prohibition statutory prohibition against the infliction of "severe physical or mental pain or suffering" should be read so narrowly that it covers only "death, organ failure, or the permanent, impairment of a significant body function." In particular, a sensible definition of torture seems to cover water boarding, where one pours water over the face of an immobilized and blindfolded individual to induce the immediate gag reflex of drowning.
I've written on this topic at length, and I think it is worth reading a more complete discussion of the issue in my contribution to Confronting Terror, just out last week. I would only make a few points in response. Our general reading of the torture statute --which was in important respects later adopted by a federal appeals court, and even by the Obama Justice Department in briefing in a separate case -- was that the defining characteristic of torture is the specific intent to carry out extreme acts of inhumanity that cause severe physical pain or suffering of a mental or physical nature. As for waterboarding in particular, this was something that the Defense Department used on 20,000 of our own officers to train them in the event that they were captured in combat, and there was no evidence from those cases that it caused physical pain or created any long-term harm afterwards. When balanced against the great need for information on al Qaeda and its pending attacks in the first few years after the 9-11 attacks, I think it was a reasonable interrogation method to use on only the top three leaders of al Qaeda. And I think the results speak for themselves -- a decade without any successful terrorist attacks on the United States, the decimation of al Qaeda's top leadership, and the location and killing of Osama bin Laden.