In response to Holly Burkhalter's Jan. 5 op-ed, "No to Torture," David B. Rivkin Jr. and Lee A. Casey claim that the people being held at Guantanamo Bay, Cuba, are neither "legally nor morally entitled" to the rights afforded under the Geneva Convention [Free for All, Jan. 11]. Like it or not, legally they do have those rights. Article V of the convention states that in cases where "any doubt" exists as to the status of a prisoner, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
Shortly after the detainees began arriving in Guantanamo Bay, Secretary of State Colin L. Powell -- no novice when it comes to the area of international law regarding war -- recommended that tribunals be convened to ascertain the status of some of the detainees. In spite of Powell's recommendation to follow the convention, President Bush declared that they were all unlawful combatants and refused to hold tribunals to determine their status. Because significant "doubt" clearly existed about a number of the detainees, the U.S. action was in violation of the convention. Ironically, the prisoners remain legally covered by the convention precisely because of the U.S. decision not to hold individual tribunals.
As to the moral argument, obviously members of al Qaeda have no moral (or legal) right to the protections afforded under the convention. Unfortunately, the moral argument cannot be made because the administration failed to determine the detainees' affiliations. After more than a year of detention, the first releases are being made. According to press reports, the men released late last year were in their seventies and eighties and were sent to Guantanamo Bay against the advice of intelligence officers in Afghanistan, who did not consider them a threat. It is likely that some of those who have been held are not even combatants, much less "unlawful" ones.
Holly Burkhalter is right. The Bush administration has "degraded itself, along with the international law norms it flagrantly violates." The failure of the administration to follow the Geneva Convention also places U.S. personnel at an unnecessary risk.
-- Christopher Ambrose
David Rivkin and Lee Casey defend the legality of beatings, painful bindings and other forms of what they euphemistically call "aggressive interrogation." But the very European Court of Human Rights case they rely on found these techniques absolutely prohibited because they were inhuman and degrading. By the time the case was decided, the United Kingdom had forbidden their use, paid massive amounts of compensation to victims, given an "unqualified" pledge that they would not "in any circumstances be reintroduced as an aid to interrogation" and directed that officers using them be prosecuted. That's some precedent for the legality of "aggressive interrogation." Likewise, the United States has pledged in two treaties approved by the Senate under President Bush's father to forbid torture and cruel, inhuman and degrading treatment.
In his 2002 State of the Union speech, President Bush pledged that America "will always stand firm for the non-negotiable demands of human dignity." Nothing is less negotiable legally or morally than the right to be free from torture or cruel, inhuman and degrading treatment. Will Bush be remembered as the president who had the backbone to live up to his pledge, or as the president who thought that inhuman treatment in a good cause was negotiable after all?
-- Stephen Rickard
The writer is director of the Nuremberg Legacy Project.