WHY THE ENEMY CAN REJOICE - And Who They Can Thank
By Alan Nathan
Published September 21, 2006

The national argument has turned to guidelines for interrogating terrorist prisoners and instead of reaching a consensus that provides some legal specificity, our leaders are lunging for ambiguity in the name of international law. Their true political agendas I’ll leave for others to decide, but their salient misapplication of global jurisprudence is laughingly self-evident. Myopia’s cruelty now wears the garb of righteousness and its favorite haberdashery is Capitol Hill.

In June of this year, the Supreme Court showed why driving a car isn’t the only thing that some folks should stop doing in their 70’s and 80’s. They ruled in Hamdan v Rumsfeld that terrorist prisoners are entitled to the protections of the Geneva Conventions Common Article 3. Unfortunately for them, Common Article 2 of those same conventions disagrees but was inexcusably overlooked, ignored, not read, misread, misinterpreted, bypassed, forgotten, or ignored – take your pick, I don’t care. One thing is certain however, Article 2 is in opposition to the court’s application of Article 3 as it relates to non-signatories and no one, including the President, has the boldness to call them on it. It states:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The terrorist community has not accepted and applied “the provisions thereof” and therefore blatantly fails to meet the contingency that would otherwise bind us. No court on the planet has the jurisdiction to enforce a non-existing agreement – including our Supreme Court. Consequently, as anguishing and unprecedented as it may seem, the President is constitutionally required to reject the Supreme Court’s ruling as one that reaches beyond its separated powers – the Executive and Legislative branches aren’t the only ones answerable to “checks and balances.”

Senators John McCain (R-AZ), Lindsey Graham (R-SC), Olympia Snowe (R-ME) and John Warner (R-VA) are resisting President Bush’s plea for a law that would detail Common Article 3’s implementation because they claim that to do so would be akin to rewriting it. They argue that repercussions would include other nations mistreating our soldiers believing that they too have the right to “amend” parts of the Geneva Conventions. (As if greater compliance thus far has protected our people.)

Disturbingly and oddly enough, the Detainee Treatment Act of 2005 is all that Bush wants as a guide for the interrogation of prisoners – a law comprised of Senator McCain’s own language on the issue. So why is he resisting? Plato once quoted Socrates as saying that, “An opposite can’t be opposite to itself.” Translation to Mr. McCain, “Not even you can argue with someone who agrees with you.” It’s just sad that he agrees with you to this extent.

And if the waters aren’t cloudy enough, former Secretary of State Colin Powel has entered the public debate against the President by way of a letter to McCain in which he states, “The world is beginning to doubt the moral basis of our fight against terrorism. To redefine Common Article 3 would add to those doubts. Furthermore, it would put our own troops at risk.” Powell more recently argued that because of Guantanamo, Abu Ghraib and renditions, world perceptions are questioning whether or not we’re adhering to our own standards.

Secretary Powell would be well advised to remember that perceptions are illegitimate without corresponding foundation. You cannot say, “I perceive, therefore it exists.” Perceptions can never be the gold standard for truth because, unlike facts, they always serve a master with agendas.

There’s no contextual proportionality achieved when greater press and political indignation is voiced over America’s treatment of prisoners than is expressed over the UN’s tolerance for atrocities against incarcerated populations throughout the Middle East, China and Russia. McCain, Graham, Snowe and Powell have all countered that observation by arguing, “Well, we must adhere to a higher standard.” However, by default, that double-standard logic perpetuates lower standards for other nations. Why should that dynamic be countenanced? Is it because they’re a lower people? I would hope not.

There are few forms of bigotry more self-evident than that of patronizing whole demographics because they supposedly don’t know any better, while we in fact camouflage that action under the guise of fulfilling our own loftier calling. We can keep our basic principles while demanding more self-appraisal from others.

Perhaps what’s most dangerous about our debates on prisoner interrogations is this rampaging unchecked denial over the core ambiguity of the language in question. Common Article 3 prohibits torture, cruel, inhumane and degrading treatment of prisoners. The first three are generally grotesque forms of assault delivering intense pain. But “degrading” is the lowering of one’s self-esteem. It would be mythical to equate violence against their flesh with pressure on their pride.

Do we really see no difference between, “Talk or we’ll slice you to death” vs. “Naughty terrorists – naughty, naughty, naughty.



Alan Nathan, combative centrist, columnist, speaker and the nationally syndicated host of "Battle Line With Alan Nathan" on the Radio America Network.

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