It doesn't matter what "category" the torturee falls under. We signed the GCs; we're obligated to adhere to them, even if others don't.
What
does matter is that it is clear that an al Qaeda operative
doesn't fall under any of the categories.
There isn't any question about that. They clearly aren't any of the following things:
(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.
Al Qaeda isn't an official armed force.
(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.
They clearly don't fulfill conditions a, b, and d.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
Not regular armed forces so they don't qualify
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
Clearly not the case.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
Again, clearly not the case.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Not the case. Most actually do the exact opposite. Come into a region that they are not inhabitants of and fight.
(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
Nope.
(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
Again, no.
The wording at the end of article five is clear.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Thus, you must prove that there
is a doubt that they may fit inot one of the categories of article four.
Unfortunately, there is usually little doubt. In most cases they clearly do
not fit the above criteria.
This has made the Geneva conventions a moot point when discussing al Qaeda detainees.
The best approach I've found so far is the bill of rights, and arguing that it places limitations of the federal government as enumerated by the preamble of the bill of rights.
A combination of the fifth and the eighth amendments. The fifth states that detainment without due process is perfectly legal in these cases. Thus, all detainment and subsequent actions that occur while detained may be viewed as a from of punishment (although it hasn't been ascertained if "punishment" is the correct term for an interrogation yet, which leave the second portion of my argument open for criticism).
The 8th limits the power and authority of the government so that it may not use "cruel and unusual forms of punishment". thus, if one views the torture as a punishment, which I do, it is something that the government is prevented from doing to anyone, be they citizen or non-citizen. (this argument also is based on the belief that the bill of rights is not a granting of rights, it is a purely defining document designed for limiting the authority of the US government in all instances).
The only thing that requires a legal interpretation is the word "punishment" in cases where due process is suspended because of public danger.
If it is legally decided that without due process, no actions can be construed as "punishment" then the argument will fail.
If it is legally determined that punishment can be something independent of due process, then it would succeed.
If anything, this is the approach that is best suited towards ending torture techniques for combatants that clearly do not fit into the geneva convention guidleines, such as Al Qaeda.
My problem with our government using torture to interrogate detainees is not based on morality or the geneva conventions. It is entirely based on the Governemnt using powers that it has been prohibitted from using.
This argument is most effective I've come up with thus far because:
1. The veracity of any one morality is unprovable. Claims of something being universally immoral are entirely subjective opinion-based claims, and therefore irrelevant to a logical and legal debate.
2. The Geneva conventions don't apply because although they prevent the use of torture on certain individuals that meet certain criteria, Insurgents, terrorists, and other sub-national belligerents that transplant themselves into a situation clearly do not fit these criteria and therefore there is no legitimate doubts that can be cast on their status that would render the conventions as being applicable.
3. It makes an argument based on small-government conservatism. Since a large portion of the supporters of torture are small-government conservatives, it is the perfect argument because it strikes at their currently beliefs. In fact, being an anti-federalist is the primary reason I've always been against torture carried out by the government. I don't like the government having that power.
4. Arguing that torture is a form of punishment is not inherently difficult. The issue could be resolved for good far more quickly using this approach than any other.
I'm making my comments to you because I
agree that the government should not be torturing detainees. But I
disagree with the approach you are taking to make that argument.
I've looked through that approach in great depth, even using it myself, and have come to realize it's flaws completely by doing that.
