Thursday, January 06, 2005

Torture? Your Lame Jokes Are Certainly Painful

The once funny Daily Show is wetting itself over the Gonzales confirmation hearings. Stewart and company, like kids who just discovered they can make fart noises with their armpits, just can't stop themselves from literally repeating the word "torture" over and over. Now I'm certainly not a stick in the mud. I love a good joke more than the next guy. But heh, Stewart, rule one: be fucking funny.

More to the Gonzales point though. Much of what the media is throwing a hissy fit over is simply not torture. Much of it is. But by confusing the two they weaken the case they wish to make.

Tonight, Stewart referred to the Geneva Convention as the "adorable Hummel figurine of international law." Cute but not funny. More importantly, has anyone watching, or for that matter working for the Daily Show read the fucking Convention?

Here it is for the few curious out there. I'll quote the relavent passages.

Who are prisoners of war? This one is a soft ball. Article 4, part A.

'A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. 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:

(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.'

That's right kids, the bastards kept in Guantanamo are almost certainly not POWs in a legal sense, as they were not members of a uniformed military carrying arms openly and abiding by the customs of war. Many of the people captured in Iraq do not fit the definition either. Many do and they should be treated accordingly. But the al Qaeda thugs, the members of Zarqawi's group, the men who build car bombs and assassinate police officers are not POWs. The Convention itself is designed that way.

The whole point of the Convention is provide mutual protection for the Contracting Powers and their armed personnel. The Convention is not a humanitarian gesture. It is a document of rational self-interest for the Contracting Powers. Secretly armed men, out of uniform, fighting with disregard for the rules of war are not protected by the Convention. Why should they be? Who would have signed such a document in 1950? It would be irrational to do so and despite what people may think, our grandparents were not idiots.

Back to Gonzales. His big sin seems to be pointing out the limitations of the Convention.

In 'a draft memorandum written by Mr. Gonzales, discussed why he believed Al Qaeda and the Taliban in Afghanistan were not subject to the full protections of the Geneva Conventions and described some provisions of the agreement as "quaint" and "obsolete." Mr. Gonzales said Thursday that he stood behind the legal reasoning outlined in that memorandum, which was later adopted by Mr. Bush.'

Today he reaffirmed his support for the Convention. He said that he was 'deeply committed to ensuring that the United States government complies with all of its legal obligations as it fights the war on terror, whether those obligations arise from domestic or international law.'

"These obligations include, of course, honoring the Geneva Conventions whenever they apply," he said.
Note the important disclaimer, "whenever they apply." Whenever they don't, and when domestic law does not apply, then "torture" becomes a merely academic question as it is not illegal.

Not that I am supporting torture. But I do not consider non-physical coersion, such as exposure to flashing lights, loud music, or barking dogs, being put in solitary confinement, subject to humiliation, or nakedness to be torture. Beatings, electrocution, starvation, or being attacked by dogs, these are torture.

The U.S. government may choose to treat these detainees humanely and I hope they do. But this is not mandated by the Convention, there is no legal requirement under the Convention to do so (there may be under domestic law; I'm not a lawyer, I just play one on my sofa).

Humanitarians, leftists and comedians love to brandish the Convention as it was some universally applicable moral imperative. It's not. The Convention is a legal document and like all legal documents it has limitations and stipulations and loopholes. Gonzalas is a lawyer whose job is to analyse those.

Ask yourself, seriously, what is torture? Take a moment to think about it. If you come up with a good definition, please leave it n the comments. I believe the key distinction between torture and non-torture is the physical nature torture. Threats, insults, discomfort, being provided pork at meal times - can these be considered torture? If so, how are we expected to treat these enemy combatants (who I remind you are not POWs)? When discomfort becomes torture then imprisonment itself is toture, and that is absurd.

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