29 April 2007

Terrorists breaking with civilization

One of the great and grand things heard of are the 'human rights of terrorists' concept floated by so many. Yes, they do point to the Universal Declaration of Human Rights over at the UN which gets into areas of hot dispute, especially rights to: education (which is compulsory at the elementary level!), a standard of living that allows for health care and 'necessary social services', rest and leisure, holidays, periodic and genuine elections, and on and on. It would be very nice if those that have come out in favor of tyrants and then cite these things would, please, mean them. But they don't. It is used as a bashing point against democracies which, by and large, offer these things because they do not offer them in enough *quantity* while those Nations that offer few if any of these things, just somehow escape judgment. And that gets us to judging and law, which this fine document covers and some assume it to be over-riding in all circumstances. In point of fact this entire listing is very good save for one very salient area: wartime.

That lovely Universal Declaration covers civil rights, not martial rights. It cannot contravene the set of Treaties that *do* cover martial rights, which is the Geneva Conventions. The reason that the Universal is *not* universal is that its own language pertains to social, civil criminal and political rights, not rights during wartime. As the GC has precedential order before the Universal Declaration it must give way to that precedent in those areas and may not contravene them in any way. As an example, Article 11 (2) of the Universal states the following:

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Note that the emphasis is on mere civil offenses. That is the right not to be tried for crimes that are not crimes or are ones ex post facto. But with terrorists you get a problem of them not adhering to the Nation State framework that is necessary to formulate these civil human rights. Here is a relevant passage from the Universal Declaration:
Article 15.
(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
This talks about 'arbitrary' decisions and those are referencing tribunals and such. But what of individuals who renounce their Nationality so as to no longer be held accountable by its laws? While an individual does have the right to Nationality, they may exercise or non-exercise such right as they see fit. There is no obligatory Nationality placed upon anyone, save by lawful functions of Nations, and when individuals renounce such Nationality they no longer fall within the National framework between Nations. Here the National Law must be seen as enforceable only to the extent that *voluntary* disassociation happens. And when an individual adheres to a creed or group that has no Nation? That is the problem when fealty is sworn to a terrorist group by an individual: they have moved outside of this Universal Declaration by adhering to no Nation or State.

I really do hate to say this, but the other rights of being a *person* are only enforceable upon Nationals. Persons who abjure affiliation to Nations start to get very little in the way of National rights when they are working against Nations. That is expressly reinforced in this:
Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Notice that the emphasis is on being a member of a society within a State, and has been seen before that is accorded to Nationals, or individuals adhering to Nations. And at the very end this is clearly stated:
Article 30.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
This is the final statement of the Universal Declaration and makes it perfectly clear that those that fall within this Universal Declaration are State, group or person. These are the legal identifications of States, sub-state groups and persons who are Nationals. Of course this brings up Non-Governmental Organizations, which have entered upon the stage of human activity and have very weak affiliation to a National precept. Even worse are terrorist organizations which support NO Nation, NO State and engage in activities to attack same. These clearly do *not* fall under the Universal Declaration and when individuals adhere to such groups they are also stepping, consciously, away from the Universal Declaration by their ACTIONS.

Over at the GC they do reference all the other applicable Treaties, but there are scant few dealing with martial laws and rules of war. Those pertain to Genocide and certain classes of weapons, like landmines, which Nations sign on to or not as they please, like all other Treaties. What the GC does set out is an orderly view on how some basic things can be done to ensure that barbarism does not degenerate during time of war. But even here there are discriminations about who does and does not fit under the Treaty language. In particular the US has *not* signed on to the 1977 language covering terrorism as that is an infringement on the Non-National Armed Forces capability of the US Constitution granted to Congress by the People under the Letters of Marque and Reprisal language. That is the Nationally sanctified and allowed Power granted to Congress to wage war by other means while still adhering to the Nation State concept. Terrorist language infringes on that clear understanding that Nations can, indeed, field non-National forces that are still fully accountable to Nations. And as other Nations no longer make that distinction and attempt to lump it all together based on their prior outlooks, the US cannot, Constitutionally, sign that agreement and give it any force at all.

During times of war the GC makes clear distinctions between Soldiers and Civilians. Again these are Nationals, particularly Soldiers, that must wear uniforms, have accountable command structure, have a governmental point of contact and other needful things to ensure that National combatants are recognized as honorably serving a Nation. Civilians are the unarmed individuals caught up in conflict and have specific rights and responsibilities, and are to be given protection and refuge if at all possible during wartime conditions.

That now leaves us with the Terrorists: individuals or groups adhering to no Nation, flying no flag, having no command structure, having no governmental contact point and using force of arms to cause death and destruction outside of the scope of National laws and International warfare agreements. They wage, in short, illegitimate warfare without recompense of any Treaty or National law to hold themselves accountable. By doing so they have stepped away not only from the pre-1977 Geneva Conventions but from the Universal Declaration by voluntarily removing themselves from it. By taking up weapons of war and waging illegitimate warfare upon peoples and Nations, they seek to remove the National structure of protection *for* people and impose terror, chaos and barbarism. The Universal Declaration, in point of fact, DENIES them the right to do this. By doing these actions they have put themselves BEYOND the Universal Declaration.

Yes, they have not only given up National affiliation, but they have BROKEN with the Treaty for the Universal Declaration of Human Rights. They have disavowed civilization so as to freely attack civilization in a way that Nations do not normally have recourse against, save the United States and its Letters of Marque and Reprisal language. Pretty strange, that, to have the perfect war power available and not use it to protect the Union.

That said there are still those that would purport that terrorists still HAVE rights, even after they have BROKEN with these declarations and have taken ACTIONS to demonstrate that they do not consider them to be valid. Those same actions nullify the Treaty for them, and wishing it back to them is a blatant disregard of the Treaty language which forms the basis of 'international law'. Thus the entire concept of using Civil Law to prosecute them is ill founded on two bases: first these individuals have removed themselves from Nation State framework, and, second, they take up war in organizations that are illegitimate under the Nation State framework.

In other words: war crimes.

This comes back to bite those Nations that try to treat these illegitimate actors as merely breaking civil laws when it comes to prosecution of same. Witness the aftermath of the 1993 WTC Bombing and its leader Sheikh Rahman, from Strategypage, 29 APR 2007:
The recent disbarment of Lynne Stewart is one of the latest examples of what is wrong with using the law-enforcement approach to dealing with terrorism. Not only is there the fact that all too often, treating terrorism as a criminal matter to be dealt with by law enforcement agencies, leads to terrorists going back onto the street, but there are problems with the lawyers.

Stewart was convicted for providing material support to terrorists while she was representing Sheikh Omar Abdel Rahman during his terrorism trial. One of the things she did was pass messages to Rahman's supporters – including exhortations to kill those who opposed his brand of Islamic fundamentalism. Also, during Rahman's trial, evidence was turned over to his attorneys. At least one of the documents handed over in accordance with rules of discovery ultimately found its way to al Qaeda headquarters in the Sudan. That document contained a list of people who were on the government's radar screen – and thus alerted al-Qaeda to the possibility of surveillance. This was an intelligence disaster.

Once a person, group, or country find out that they are of interest to an intelligence agency, two things happen. First, they tend to become very careful with regards to communications – they take steps to throw off surveillance efforts, and they will even shift to means that cannot be intercepted (like couriers or flying for face-to-face meetings). Second, they begin to wonder how the information is acquired – and try to cut off the flow. If they find out enough of what an intelligence agency knows, they will have an idea of who might be a source. The suspected source's ending will not be a happy one. This not only deprives intelligence agencies of a source, but also makes recruiting future sources more difficult.

The risks of compromised intelligence are serious, and should be obvious. They primarily include the loss of sources of information (due to death or non-cooperation) and decreased efficiency from methods that have been compromised due to adaptations by terrorists (for instance, if they know cell phones are being intercepted, they will shift to messengers). These could potentially lead to successful attacks in the future.

This is why the Department of Defense is trying to clamp down on the number of meetings lawyers have with detainees. In at least one case, lawyers gave the detainees information about Amnesty International conferences and terrorist attacks that boosted their morale, increased resistance to interrogation and which encouraged attacks on guards. Over 600 attacks have occurred, many involving bodily fluids. This is not a small concern. If terrorist morale is low, there is a better chance of getting them to give up information that may help prevent future attacks.

The Guantanamo Bay setup is not the best situation, but other alternatives do not seem any better. Terrorists need to be kept out of circulation, and methods of gathering intelligence and sources of information need to be protected. A number of human rights groups are complaining about these clampdowns, claiming that the Administration is turning Guantanamo Bay into a legal black hole. Since real black holes are not presently accessible, dumping terrorists into a legal black hole will have to do. – Harold C. Hutchison
This is what happens when you treat terrorists like mere criminals, instead of illegitimate war fighting groups. First they get access to sensitive information pertaining to terrorist organizations that may be critical to the sources and methods involved in gathering same, and, second, they get access to communications with their organization directly through their attorney.

The civil legal system in most Nations is set up as an 'adversarial' process within the framework of a Nation's laws. Terrorists are outside that framework as they adhere to no Nation nor any reciprocity between Nations such as diplomacy and Treaties. Within an 'adversarial' system the emphasis turns into one of 'advocation' or having someone work to ensure the rights of those involved and their legal status is garnered by a robust gathering and presentation of evidence. Terrorists are not 'adversaries' but 'enemies' of that entire process and the entire National establishment which makes such a process have utility for Nationals and Citizens. By trying to claim 'human rights' for terrorists, the outlook being purported is one in which treatment of persons must NOT be accountable to the Nation State system, while every Treaty and obligation by Nations says just the opposite.

Anyone pushing to afford such 'rights' to terrorists, must then confront the fact that they are looking to erode the Nation State system that affords them those very same rights. We do decry outrageous treatment of these individuals, because that is beyond the norm of civilized treatment that we have come to expect through our civil law establishment and Nation State interactions. Even worse is such treatment reduces the moral of the troops involved and disassociates them from normal war time rules of war. In the US, Congress has set out some basics on treatment for terrorists via the UCMJ, which is a pure recognition that those taking warlike acts under no National system must be treated under rules of war. Anything afforded to them is under the good grace of the People of the United States via Congress, which must *also* adhere to the Treaties the Nation has signed up to and recognize the base facts that these individuals have broken with civilization.

By attempting to put terrorists on par with Soldiers is a debasement of the concept of Soldiers fighting honorably for their Nation.

By attempting to put terrorists down as mere civilians, the debasement of National Law is seen as these individuals will use any and all means given to them to attack Nations and further their causes outside of the reciprocity framework between Nations.

As Mr. Hutchison points out, these individuals get put into a Black Hole, legally.

That is, however, by their Actions that puts them there.

To safeguard our rights as Nationals within the Nation State system, these unaccountable actors in the interstices of Nation State frameworks must be curbed and some way found to abolish and end them by ALL NATIONS.

Or have our own rights put at peril by them.


SERENDIP said...

Great post. These terrorists are indirectly fighting 'against human rights'. They've declared 'war on human rights'. Why should we give them something they hate?

A Jacksonian said...

Serendip - That is the point that needs to be made out to those purporting any sort of 'human rights' for terrorists: terrorist have put themselves outside of all the structures of human conduct that is civilized via Treaty. The broad language, especially in the Universal Declaration, has a *nullifier* at point 30. You do those things outside of the framework, you have stepped beyond the bounds of the Treaty.

That is not technicality, that is the absolute upholding of what is and is not civilized. We, as a civilization and Nation, afford very little to those that step beyond that for good reason: they threaten everything worked for since 1648 and Westphalia. Tear that down and the next rules to show up with any force are the Roman ones... as in Roman Empire. They were pretty strict about it: settle down or die.

I doubt that the lovely folks putting forth human rights for terrorists want to step that far back in civlization.

We may treat them kindly because we are good people, not because they deserve good treatment. Best we not forget that or start losing all that has been built up to safeguard the rights of civilized folk.