AT THE OUTSET of the Algerian Revolution, a terrorist named
Any rational reading of the pacts makes clear that the answer is "no." Article 2 of the Third Geneva Convention, on the treatment of prisoners, states that the convention binds only the 194 nations that have signed the document. Terrorists are not a nation. Even if they were, and had adopted the protocols, gross breaches of the rules remove the obligation of signatory nations to observe them vis-à-vis the violator.
If terrorists, despite their stateless status, accepted the norms of Geneva, a strong moral case would exist for covering them with Geneva's aegis. But for that to happen, terrorists would have to stop targeting civilians. They would have to stop mutilating and murdering prisoners. They would have to wear uniforms and carry their arms openly (no suicide vests). In short, they would have to stop being terrorists, who are the antitheses of what Geneva expects in combatants. The only amenity for which a captured terrorist can reasonably hope is a well-place bullet--what General Nguyen Ngoc Loan in 1968 on the streets of Saigon notoriously dealt an undercover Viet Cong assassin, the blood of an innocent family fresh on his hands.
However, in a curious June ruling in the case of Hamdan v. Rumsfeld, a bare Supreme Court majority decided that unlawful enemy combatants, as prisoners, enjoy immunity from "grave" breaches of the Third Convention's Common Article 3, which prohibits "outrages upon personal dignity, in particular, humiliating and degrading treatment." But Article 3 covers conflicts only "within a signatory's territory" and "not of an international character." Virtually all such combatants in U.S. custody were captured abroad, and if al-Qaida's operations are not "international," why isn't the nation sleeping better at night? Curious indeed.
One rub for the administration was that Hamdan cast a pall over "aggressive" interrogation techniques that CIA operatives had used to break top al-Qaida prisoners, thus uncovering new mass-murder schemes and nabbing yet more atrocity specialists. After a spirited debate, the Senate voted last week 65-34 for a sensible implementation of Article 3, whereby Congress would specify prisoner-quizzing methods it believes violate Article 3, and the president would detail techniques he thinks pass muster.
In short, interbranch consultation likely will leave our spooks with a well-stocked bag of motivators to get those who want to kill us all to sing. Note that 12 Democrats voted for the bill, as did the GOP senators--John Warner, John McCain (Ariz.), Lindsey Graham (S.C.), and Chuck Hagel (Neb.), military veterans all--who had sought to curb the White House's discretion.
Former U.S. State Department Counterterrorism Coordinator Cofer Black once spoke of the end of terrorist Abu Abbas--his gang hijacked the Achille Lauro and pushed a wheelchair-bound Jewish man into the ocean--after coalition troops had captured Abbas in 2003 in Iraq. "I heard he died in custody," Mr. Black said in a faux-naif tone. "Life's a bitch."
But the serving of just desserts isn't the reason to reserve the option of unpleasant interrogation techniques for top terrorists. It's to preserve one of those "American values" that opponents of the techniques always omit from their idealistic lists--namely, the value of self-preservation. On behalf of terrorism's targets--still-living Americans in a suit, or in a skirt, or toting a book bag onto a school bus--Mr. Bush and Congress have just said to the morally unimaginative: Keep your death wish to yourself.