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Remedy the defects

Tom Paine in Genevaland

A torture-happy editorialist for the Wall Street Journal moans about “Osama in Genevaland”, although the Osama in question is probably in a cave rather than eating chocolate in Switzerland. Osama in Genevaland is supposed to be, nonetheless, the terrible result of the US Administration’s recent acceptance of the Supreme Court’s Hamdan ruling – that Geneva Common Article 3 protections must apply to prisoners at Guantánamo bay. The article is a farrago of falsehoods and fantastical reasoning, among which is this ingenious application of a slippery-slope argument:

Common Article 3 goes considerably further, forbidding, for example, “outrages upon personal dignity, in particular, humiliating and degrading treatment.” What exactly constitutes personal dignity and outrages upon it? Who knows, though we bet the ACLU will be more than happy to supply some answers. Our guess is that the concept can be read so expansively as to forbid the U.S. from so much as shouting at captured al Qaeda suspects, never mind “waterboarding” them.

That’s right: give these liberals an inch and they’ll ban shouting. Soon enough they’ll be demanding Swiss chocolate and HBO for all prisoners.

The editorialist later swerves over to the familiar “necessity” defence:

In a war in which actionable intelligence acquired from captives is crucial to uncovering terrorist plots and preventing future attacks, it’s hard to imagine a greater self-inflicted setback to counterterror efforts.

Here, a fuming editorialist is apparently better informed than the FBI officer at Guantánamo bay, who wrote [pdf] in 2003 that the “torture techniques” used at the prison had resulted in “no intelligence of a threat neutralization nature to date”. Never mind. The best is yet to come:

By identifying terrorists as illegal combatants and treating them accordingly, the Administration was attempting to remedy the defects of the pre-September 11 legal architecture for handling terrorists.

“Remedy the defects”. It sounds a lot like Alan Dershowitz’s latest disingenuous invocation of a “black hole” in the law on torture, about which I wrote last week. Dershowitz complained that there are no “rules”, or alternatively that what “rules” exist are outmoded. But it seemed in the end that he just didn’t like the rules, plenty of them, that were in effect. The stipulation of “illegal” or “enemy” combatants, similarly, was, as constant explicit invocations of executive power attest, concerned with escaping the strictures of the law, not “remedying its defects”. Unconcerned by such quibbles, the WSJ editorialist ends with an apocalyptic prediction:

[A]ccording such rights to terrorists who murder women and children gives them moral legitimacy that will make winning this war that much harder

In response to which, I will merely point out that, by coincidence, I have been recently reading a biography of Tom Paine, a man who lived through the American War of Independence and the French Revolution. He argued in front of the French government in 1792:

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

I suggest that Paine has not yet become irrelevant to the country he helped make.

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