Taking the bait

This post was going to be about some other things, but given the length, detail, and..shall we say divisiveness of Vargas' comment, I feel it necessary to reply. I'll take issue with a couple things, but first, I'll fess up to being a bit dogmatic. What can I say.

Generally, Vargas' arguments boil down to a few points:

1. Overriding Ally concerns and sovereignty is justified to fight terrorism.
2. "Combatants" don't have protection under the Geneva Convention, so they don't have a right to due process (aka - only state violence is legitimate).
3. Propose solutions, criticism is boring.

The Role of our Allies

The Italy issue is not solely one of jurisdiction like some crass Law & Order episode as is asserted. It's not about "collars" it's about a huge invasion of Italian sovereignty which not only demonstrates the utter hypocrisy of "American Exceptionalism" but also reveals the lack of cooperation combating terrorism. Cooperation is built on trust, sharing, and transparency, something that the Bush administration has been requesting since 9/11 (and also happens to be featured in Bush's National Security Strategy) and pretty much everyone agrees is necessary to "defeat the terrorists". When the CIA goes around absconding with suspects in our allies' lands without informing them (or seeking permission) and then planting fake stories about those suspects fleeing to the Balkans, well, that bodes poorly for the whole "cooperating to fight terrorists" strategy and is likely to frustrate future efforts to prevent terrorism.

Not to mention the fact that we'd flip out if the Italians did that to us. Or that the clear implication is either that Bush is just flat out lying when he says we need to work with our allies to fight terrorism or he doesn't have a clue as to what his underlings are actually doing. Either way, this event speaks to the gross mismanagement of this "war".

I'll repeat my claim that if France or the UK had a secret prison on an air base that they leased from the US in Iowa where they were conducting extralegal interrogations and incarcerations, middle America would flip it's lid. Denying this invalidates affiliation to reason.

The Legal Case: Why Combatants always have legal rights

First and foremost, it's not about incarcerating criminals. As long as detainees have due process and fundamental human rights ensured, I'm not going to quibble. Legal systems are obviously fraught with errors and problems, but that's not an issue in this dispute. The issue is, should "combatants" receive basic legal rights as respected by the Geneva Convention, the UN Declaration on Human Rights, the European Convention on Human Rights, etc. I think they should and so do all the treaties that we signed as well as world opinion. The whole point of due process is that people are innocent until proven guilty. That doesn't mean we let suspects walk around and blow sh*t up all the time, but that does mean we have to have minimally sufficient evidence to detain, prosecute, and incarcerate suspects. Remember, there has yet to be a single conviction of any of these alleged terrorists. Have you even considered that perhaps the reason no lawyers have been provided and no prosecutions have been conducted is because there isn't a shred of evidence to detain, not to mention convict the "combatants" around the world?

Not only that, detaining people without due process, regardless of "combatant" status is illegal under the European Convention on Human Rights (see article 5) which all members of Europe have signed (including Poland and Romania and 44 other states). In addition, all people that are in Europe (visitors, residents, etc) receive protection under this treaty and the right to due process (liberty) is an unconditional right. It is simply illegal to hold people without trying them, granting them access to lawyers, etc. in Europe and the US flaunts that at will.

Even beyond that, however, there are fundamental standards of what represents human decency and holding people without every trying them or facilitating in torture or torturous situations is something that we should not brush away because these are "bad" people. In fact, President Bush has staked his legacy on the claim that he is standing up for what is morally right, so it's utterly shocking that his morals could be so narrow as to exclude fundamental standards of human decency.

Re: Secret Prisons

I think I've dealt with most of this above but I wanted to address two concerns.

First, the claim that "enemy combatants" who are "not from a legitimate nation or government" don't warrant any rights protections under the Geneva Convention is, sadly, flat wrong. This claim is clever legal fiction from a Bush administration that frequently implies that all international laws flow forth from the Geneva Convention and that which is not included is thus not obligatory. Perhaps a re-reading of the UN Declaration of Human Rights (which every member of the UN has signed and is binding) would be in order for all the budding legal minds that wish to "legalize" fundamental violations of human rights (not to mention the dozens of other treaties that exist that guarantee these rights as well). Not only that, the Geneva Convention is not a "stand alone" document. There's plenty of case law to support the claim that the all detainees, regardless of status, should receive the basic fundamental rights contained in every human rights treaty in existence (life and liberty).

There's also concept called 'customary international law' that states that when a preponderance of nations act consistently in one particular way for a lengthy period of time, that behavior has become a "custom" and is thusly recognized as "international law". So, even if the Bush admin could win the argument that "combatants" don't receive protections under X treaties, they'll still not be able to have legal standing to detain "combatants" without due process.

Second, the claim that "combatants" don't have a right to legal protections lies on a heady premise that a "war on terror" means that the enemy does not originate from a state. This argument is that a strict reading of the Geneva Convention reveals that it is an accord between states during conflict, thus, to those that are "stateless", it does not apply. That logic, while indeed clever, appears to completely ignore several other parts of the Convention that bind the signatory state (US) to its treaty obligations regardless of the membership status of the opposition when dealing with Prisoners of War (see article 3).

It also conveniently ignores the fact that Afghans come from Afghanistan (a UN Member state), Iraqi's from Iraq, etc. In short, everyone has a state of origin and even those that don't still have international legal personality guaranteeing them fundamental rights and protections under international law. I mean, really, didn't we invade Afghanistan because they were a "terrorist nation"? Isn't that the same justification for Iraq?

Finally, there's no basis to separate "terrorists" from the "criminal" sections of those treaties, meaning that those individuals still receive basic protections - i.e. calling it a "war on terror" doesn't mean people lose citizenship and basic human rights any more than the "war on drugs" means that drug dealers lose citizenship and basic human rights.

In sum, the legal arguments are on the side of justice and there's only about 60 years of jurisprudence to back me up on this one, although I'm no lawyer.

Proposing Solutions

Finally, i'll admit to being pretty negative about the whole thing. Frankly, for someone like me, the state of US foreign policy is pretty depressing. But, I'll get off the horse and propose the solution (less eloquently now) that I proposed in my dissertation.

America is the unquestioned leader in the world. We have had and continue to have the opportunity to remake the international community in our image. Instead of isolating ourselves from our allies, breaking treaty commitments, unsigning treaties, and generally acting like a ass, we should be directing our energies toward promoting the values and ideals that we hold dear. We shouldn't torture or deny people their fundamental rights (or be ambiguous about torture) simply because it's the right thing to do, but also because we want others to uphold the same values we believe in. I'm not going to claim that sticking to our commitments and acting consistently will bring around rogue nations like Iran or North Korea, but neither will any of the neo-cons win that violating those commitments will make the world a better place. In short, I'll always be correct that we have a chance of improving the world by actually leading and that bullying and acting the ass always makes the world a more dangerous place.

Realist legend Morgenthau once said (paraphrasing) that "foreign policy should be conducted not on the basis of what we want the world to be, but on how the world really is." The neo-cons are making the same mistakes the Wilsonians made in the 1920's. I'm not a realist, but the mistakes he found in the Idealist tradition, mistakes that directly contributed to the failure of the League of Nations and World War 2 can be seen in the current US foreign policy strategy.

Since the preceding claims are a bit vague, as a start, here's a clear list of things that could be done to improve the situation:

- Fire George Bush and the entire administration

- Start sharing information with our allies and actually cooperate to combat terrorism as is our stated National Security Strategy

- Stop illegally detaining people without due process

- Be honest about the state of affairs in Iraq (i.e. stop treating the war as a PR venture and start an honest dialogue with the international community about the long term prospects of stability, democracy, and peace in Iraq)

As I said before, we can do better.