The 1949 Geneva Conventions were created in the aftermath of the horrors of Nazi Germany. The First Geneva Convention, "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field," was first adopted in 1864 as part of the founding of the Red Cross, but revised at the time the other three were written. The Geneva Conventions II, III and IV cover "the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea," "the Treatment of Prisoners of War" and "the Protection of Civilian Persons in Time of War."
The idea behind the Geneva Conventions and similar agreements was to codify the rules of "civilised war," and to ensure that no nation would want to violate those rules. The warning that any fighting force that violates those rules will not be able to claim their protection if captured is an explicit part of the Conventions. To make it perfectly clear, Article 4 of the Fourth Geneva Convention specifically states, "Nationals of a State which is not bound by the Convention are not protected by it."
Even if one ignores the fact that terrorist groups are not a nation, the Conventions set very specific conditions under which a captured combatant may claim POW status. According to the Geneva Convention III (Part 1, Article 4, Section 2), prisoners of war must be former members of the regular armed forces, non-combatants, or:
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:
By their very nature, terrorists are walking violations of the Geneva Conventions. They deliberately make war on non-combatants, torture and murder prisoners, and hide among civilian populations. Because of this, the Geneva Conventions not only don't apply to them, they can't apply to them. If the Geneva Conventions protect terrorists, they will lose all meaning. Why should anyone abide by them, when they will be able to claim protection regardless of their own actions?
(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.
In a stunning overreach of their Constitutional authority, the Supreme Court voted 5-3 that Geneva Convention protections must be extended to captured terrorists. This decision effectively orders the President to violate the Conventions and render them meaningless. The Court also denied the President the ability to convene military tribunals for prisoners, making military courts-martial or civilian trials the only avenues for prosecuting enemy combatants without an act of Congress.
In their ruling, the Court also extended Constitutional protections to captured terrorists, including the rights to counsel and to confront their accuser, and the presumption of innocence. These are rights that have always been reserved for those who live under our Constitution, not foreign enemies whose aim is to destroy it. It's hard to imagine General Patton sending soldiers away from the battlefield, to sit in court waiting to testify against captured Nazis. Patton would have simply ordered that no prisoners would henceforth be taken alive. Then again, half the Federal government wasn't trying to lose that war with the enthusiastic cooperation of the media.
This interference with and second-guessing of the President's wartime powers is nothing new. For years, the other two branches of the Federal government have been trying to weaken the Executive branch. Members of Congress demand that the President get permission from the Judiciary before gathering evidence with which to prevent an enemy attack, and try to set timetables for troop movements. Members of the Judiciary demand that the President consult with Congress before creating military tribunals with which to determine the fate of captured enemy fighters. The reason the Constitution designated the President "Commander-in-Chief" is that no nation can win a war fought by committee. Our Founders understood that in a way today's professional politicians cannot seem to grasp.
The real impact of the Supreme Court's activism has yet to be felt. Every terrorist who comes up for trial will insist that classified information be disclosed to prove his innocence. Even if there is no reason to do so, their lawyers will surely suggest such a demand. The Bush administration will be forced in each case to make a sort of Hobson's choice -- either spill secrets useful to fighting terrorists, or to drop the charges and let terrorists go free to plan further attacks against us. Either way, every single trial will be a loss for America.
The only silver lining is that the Supreme Court didn't reverse their earlier decisions and declare that the President has no right to hold enemy combatants during a war. Hopefully, he can delay their trials long enough to lessen the need for secrecy regarding any information they demand. The idea that President Bush might have to ask Congress to allow him to convene military tribunals is rather worrisome. Since Guantanamo Bay is technically US soil, the Senate might find a way to put the detainees on a "path to citizenship" in the process.
After all, they just want to come here to commit the unspeakable acts of terror Americans won't, right?
