Erasing an important distinction

The Obama administration’s renunciation of the term “enemy combatants” fills the news today. The top story on Google News this morning is the Miami Herald’s “Obama administration dropping ‘enemy combatant’ term.” The subhead explains: “Seeking to distance itself from the Bush administration, the Justice Department is omitting ‘enemy combatant’ from its filing that defines detention of prisoners at Guantánamo.”

The concept of enemy or unlawful combatants of course derives from the Geneva Conventions. It is key to the distinction drawn by the conventions between those adhering to the laws of war and those who disdain them. The conventions distinguish between prisoners-of-war entitled to their highest protection and combatants not so protected.

The Bush administration’s observance of this distinction has drawn the opprobrium of elite liberal opinion. Thus the Obama administration’s announcement this week.

Reading Douglas Feith’s War and Decision, my daughter Eliana was intrigued by Feith’s account of the debate regarding Protocol I that turned on the same distinction in the Reagan administration. Feith was a participant in that debate, as he was in the debate that emerged in the wake of 9/11.

As I understand it, under Protocol I, the distinction between lawful and unlawful combatants is substantially erased. Unlawful combatants are to be accorded the protections of prisoner-of-war status under most circumstances. In “Who really protecting the Geneva Conventions?,” Eliana recounts:

Though the Carter administration signed Protocol I, President Reagan did not submit it to the Senate for ratification. In a January 1987 message to the Senate, he noted that the United States has traditionally been at the forefront of creating and refining humanitarian law, with the “objective of giving the greatest possible protection to victims of such conflicts, consistent with legitimate military requirements.” Protocol I, the President said, would “endanger civilians among whom terrorists and other irregulars attempt to conceal themselves” and unduly “politicize humanitarian law.” He concluded: “We must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.” It was thus out of a deep respect for the Geneva Conventions, and a concern for preserving their integrity, that P.O.W. protections were not extended to terrorists–and for this concern the Reagan administration was rightly applauded.

President Reagan’s 1987 message is accessible here (“we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law”). Eliana notes that among those “rightly applauding” President Reagan’s 1987 message were the New York Times and the Washington Post. Eliana then recounts how the debate reemerged in the wake of 9/11:

[T]he issues involved in the rejection of Protocol I came to the fore once again in the wake of 9/11. The first question was whether the Geneva Conventions applied to the U.S. conflict with the Taliban. Since Afghanistan was widely considered a failed state, it was not self-evident that the Geneva Conventions would apply. Mr. Feith, back at the Department of Defense serving as Undersecretary for Policy, played a key role in deciding the issue. In a recent interview, he said that he argued that the United States should not “weasel out” of the Conventions on grounds of Afghanistan’s failed statehood—an argument that the president accepted. As established by the rejection of Protocol I, the Geneva Conventions would not apply to the nation’s war against Al Qaeda, or to the combatants captured on the battlefield of the War on Terror. Those combatants, the president ruled, would receive “humane treatment.” In light of the debate surrounding Protocol I, this decision should not have been controversial; rather, it had been settled, and settled decisively, [by President Reagan] in 1987.

Eliana concludes:

One of the ironies of the War on Terror is that many in the Bush administration have been tarred as war criminals, Mr. Feith chief among them. In reality, they took no shortcuts around the Geneva Conventions, although those shortcuts were readily available to them. Not only that, but, as the Protocol I debates demonstrate, the distinctions they drew between terrorists and lawful combatants are made to protect innocent civilians and preserve the integrity of international humanitarian law against those who would hijack it for political purposes. A glance back at the history of the debate on this issue demonstrates that it is they who have remained steady advocates of a principled position, and their critics whose views have zigzagged with the times.

Among those not guily of zigzagging with the times is Jimmy Carter. Eliana’s column reminds us that he has been on the wrong side of the issue for the past 30 years. As the Obama administration moves in Carter’s direction, Eliana’s conclusion could not be more timely.

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