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Mr. President, We Need to Talk.

by John F. Tamburo, Editor in Chief, Publisher
Originally Posted: 9/18/2006 11:05:54 AM

Dear Mr. President,  

I strongly support your tireless work to protect the citizens of the United States from foreign enemies.  I applaud your decision to detain terrorists at Guantanamo Bay.  I respect your strong support of the troops, especially in light of the treacherous and treasonous comfort that those in the Democratic party appear intent to give our enemies.  We are a great nation, Mr. President, and we will continue to be great.  Your courageous leadership is but one reason that such things are true.

Now we need to talk about your proposals, the ones being blocked by Senators McCain, Graham and Warner, with the help of a pile of Democrats.  It is true that Mr. McCain is seeking to succeed you as President of the United States.  I do not support Mr. McCain’s quest to become President.  But he does raise some valid points about your proposed legislation.  Solomon said that wisdom is found in the abundance of counselors.  I respectfully suggest, Mr. President, that you listen to Mr. McCain’s counsel on this matter.  Not all of it is worth action, as I will explain below.  Some of it, however, is.

As you know, Mr. President, you have asked for the following things from the Congress:

1. Clarification as to what interrogation tacts do and do not violate the Geneva Conventions; and
2. Permit the use of Classified evidence that is withheld from the defendants, but not their attorneys, at their trials before military tribunals; and
3. Permit the use of coerced testimony at such trials (I assume that "coerced" means that it was obtained by one of the methods to be sanctioned as not violative of the Geneva conventions).

These proposals bring up some important issues that need addressing.  I will address each of them in turn.

The Terrorists do not deserve Geneva Convention protections.  But we should give them these protections anyway.

Article four of the Geneva Convention on the Treatment of Prisoners of War states, in pertinent part:

"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:

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.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power."

It is clear that the terrorists we fight do not qualify as prisoners of war under the clear language of the Geneva Conventions.  They violate sections A.2(b), A.2(c), and A.2(d).  They wear no uniforms, and even disguise themselves as civilians.  They hide their armaments until their enemies are upon them, and then spring forth and attack.  They intentionally attack innocent civilian targets (eg. the World Trade Center, Madrid, London Subway tube).  These acts all violate the laws and customs of war, and are designed to dishonorably ambush their enemies and to kill women and children.  Terrorists have, legally speaking, forfeited the protections of the Geneva conventions.  Any court decision holding otherwise ignores a fundamental rule.  If you construe a law (and this treaty is a law), you must give effect to the unambiguous text as written.  There are no ambiguities in section 4.A.2 of the Geneva Conventions.  Terrorists do not adhere to these rules, and cannot properly claim their provisions.  Unfortunately the Supreme Court of the United States, the majority of which was in this case more concerned with political popularity than the law, ruled otherwise.

That said, we should, of our own volition, grant these terrorists the treaty’s protections.  We have a history of being, and the implicit obligation of being, the principal force for good in the world.  We must show ourselves to be better than these people, who behead civilian prisoners, kidnapped off the streets, on videotape.  One way to do this is to place these people in better conditions than they place us, and to show the world that we do so.  This is doubtless a sacrifical move, but it is the right thing to do.

In so doing, we prove to ourselves, to the World, and importantly, to God Himself, that we are not going to become what we are fighting against.  We must, for moral reasons, magnanamously extend the protections of this Geneva convention to terrorists, who we still recognize do not deserve them.

We also should clarify what is and is not permitted under the convention.

Inasmuch as Article 4 of the convention is clear, Article 3, with its clause prohibiting "outrages upon personal dignity, in particular, humiliating and degrading treatment," is utterly nebulous and ambiuguous.  Does this article ban all aggressive interrogation techniques?  Does it ban none?  What is and is not permitted?  CIA agents desire to obey the law, but right now, they don’t know if anything short of a banquet subjects them to liability for war crimes!

Therefore, Mr. President, you are right to ask for clarification of which techniques are permitted and which are prohibited.  Senator McCain, who is a former POW who was undeniably tortured, humiliated and degraded, in violation of every provision of Article 3, has an unique perspective on this issue.  Does that perspective make him hypersensitive, concerned that our troops will be abused?  Of course it does, and rightly so.  But this does not change the fact that the information obtained because of these interrogations has saved tens of thousands of lives.  Setting clear parameters as to what is and is not permitted, and enforcing those parameters, gives us legitimacy in a world that wrongly thinks that we’re the bad guys.  Senator McCain’s input should be respectfully considered in drafting these parameters, but cannot be controlling.

We Cannot Have our Cake and Eat it too.

If we cannot obtain a conviction of a terrorist, even before a military tribunal, without going to the extreme of hiding our evidence from the defendant, then the conviction is not worth obtaining.  I understand the need for classified data.  I understand that the terrorists do not have the sixth amendment right to confront their accusers.  Even if classified evidence is shown to an attorney for the terrorist, how on Earth can he cogently respond to it if he cannot share the fact with his client?  Let’s say that some classified program yields information that terrorist X built a bomb used by Y to kill innocent civilians.  The information is inaccurate.  X knows nothing about building the specific type of bomb used.  So X is out of court when the classified evidence is introduced, and cannot do anything to disprove it, because he knows nothing about it.  X is hanged/shot/injected on inaccurate, unchallengable evidence.  The United States of America can never go there. 

We are the Land of the Free and the Home of the Brave.  We spill our blood to protect others all the time; we need to protect ourselves from the myth that we can yield any part of liberty for security.  If we do this here, it will be easier to do for domestic terrorists, then for heinous civilian criminals, then for any criminals.  Police forces will seek to classify many evidence-gathering techniques.  This is the slipperiest of slopes.  If Franklin, Patrick Henry, or Jefferson, or Washington were here, they would agree.

Also, we cannot think that these terrorists deserve no, or substantially fewer rights, than other humans.  To do so would flout Jefferson’s words in the Declaration of Independence: "All Men are created equal, and are endowed by their creator with certain inalienable rights..."  They have acted horribly.  They deserve the strongest punishment that the law permits.  But we must conduct ourselves better than they do, or we become them.

There are alternatives:  1) Hold X until the information no longer needs to be classified; 2) Declassify the evidence now; 3) Release X.  If X is a prisoner of war, which I have suggested above we ought to grant even though undeserved, then option 1 is workable.  Prisoners of war can be held until the hostilities end, no matter how long that is.  They have no right to a "speedy trial."  If this war lasts 20 years, then so be it.  Hold off on the tribunal for 20 years.

We simply cannot hide evidence from defendants at trial.  Hold off their trial if secrets would be revealed by the use of such evidence.

"Coerced" testimony, if such "coercion" was within the bounds of the Geneva Convention as shall be defined, must be admissible.

If you use aggressive techniques, such as cold (the Nazis used "coolers" both to interrogate POW’s and to punish escape attempts; both were held to not violate the conventions) or loud music, and get important evidence, it’s evidence.  The defense must have the right to try to impeach said evidence, as is proper at any trial.  But let the evidence in.  To not do so would be to swing the pendulum too far in the terrorists’ favor.  Why indicate what tactics are permissible if a different standard would bar evidence garnered from those newly-defined permissible tactics to be used in a tribunal?

Conclusion

I understand that there are arguments against all of my positions, and I respect those who make the arguments, and I respect the arguments themselves.  After consideration, it is apparent that according the terrorists with Geneva Concention rights is an undeserved kindness.  Unfortunately, We’ve been mandated to this "kindness" by a pile of judges who know nothing of war.  Had we given the kindness of our own accord, it would have been better for us.  Since we are in this position, we must define what is and is not permitted in our interrogations.  That is only fair. 

As for secret evidence, this is a dangerous thing that ought never to be permitted within the United States of America or any tribunal or court it constitutes.

If we define the valid standards for interrogation, we also define the evidence gathered therefrom as admissible.  That’s only fair.

Mr. President, please consider my words.  I thank you for your service and continually pray for you and your leadership.

Most Respectfully,
John F. Tamburo
Editor, Conservativity