Terror Along the Dotted Line

The Do's and Don'ts of War

Terror Along the Dotted Line

The Do's and Don'ts of War

Terror Along the Dotted Line
Military analysis.
Jan. 28 2002 7:56 PM

The Do's and Don'ts of War

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Hi Dahlia:

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The Bush administration's stance on its treatment of al-Qaida and Taliban prisoners has an unmistakable Cliffs Notes, C-student feel to it. The president, Donald Rumsfeld, Dick Cheney, et al., just don't seem to have thought all that hard about the issue. Over the weekend Rumsfeld told reporters, "There is no ambiguity in this case." And Sunday's New York Times has some unnamed White House aides saying that the Bush position that the captives are not prisoners of war protected by the Geneva Convention "was made in informal discussions, and apparently without fully consulting" Colin Powell, and states that this position was apparently reached "quickly and viscerally." There's nothing wrong with quickly, but in this matter we should try to do better than viscerally. And better than just parsing the Geneva Convention—after all, that document doesn't even mention the word "terrorism." What we need is some serious discussion about what the rules of war should be to cover the situation we now find ourselves in.

I'm not a lawyer and don't even play one on the Internet. What's more, the training on the Geneva Convention and the other international treaties on warfare I got when I was in the service was probably pretty much what William Calley got. Nevertheless, let me suggest that these laws are a good place to start.

Take the explanation Rumsfeld offered yesterday for the U.S. stance. He said that it was arrived at because al-Qaida members "didn't go around with uniforms with their weapons in public display, with insignia and behave in a manner that an army behaves in, they went around like terrorists, and that's a very different thing." Rumsfeld's distinctions echo the Hague treaty on the laws of land warfare's definition of who it covers. But they are problematic nonetheless. Would you say that the Northern Alliance soldiers were always wearing distinctive uniforms? And can you always pick out the weapons and uniforms in those pictures we've seen of U.S. special ops soldiers on horseback in turbans and flowing robes? So why aren't they terrorists too?

It seems to me that a more promising tack is to think a little harder about why treaties make a fuss about uniforms, insignias, and the open display of weapons. If soldiers are distinctively uniformed and brandish their weapons, civilians are less likely to be killed because they are mistaken for soldiers. And the Geneva Convention, which covers the treatment of prisoners of war, states right at the outset that it protects all persons taking no active part in the hostilities. I think all this strongly suggests that the fundamental point of rules of warfare is to protect noncombatants (which includes soldiers who've surrendered or who are hors de combat), and conversely that exemption from the protections of international law should kick in precisely at the point where noncombatants are being targeted. This looks to be a bright line and incidentally one that would keep most of those held in Guantanamo Bay right where the administration wants them, treated just the way it wants.

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Yet, even taking a stand at this line probably means that some, possibly many, Taliban soldiers must be accorded the full protected status of POWs. After all, although they were fighting on behalf of terrorists, that doesn't straightaway entail that they were themselves targeting civilians. If they were instead shooting at Northern Alliance and American soldiers, they deserve the upgrade.

There are other complexities lurking here, but for now I'll close by asking you: Do you think that interpreting international laws about war is OK, or are you a strict constructionist? And if interpretation is OK, what do you think of mine?

Best,
Scott

Scott Shuger is a Slate senior writer who spent five years in the U.S. Navy and served overseas as an intelligence officer. Dahlia Lithwick writes about legal affairs for Slate.