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					A New Geneva Convention?

Amitai Etzioni

Posted July 31, 2008 on Talking Points Memo Café

Jane Mayer's important book, The Dark Side, should be read together with two other
significant books, Ben Wittes' Law and the Long War and Philip Bobbitt's Terror and
Consent. The reason these books are best studied in tandem is that Mayer convinces the
reader that the Bush Administration, especially Cheney and associates, shredded the
Constitution and utterly unhinged the check and balance system, all in order to allow an
unprecedented, abusive concentration of power in the hands of the president. However,
she leaves it to the other two books to answer this question: given that the United States
does face a new kind of threat, how should the next administration deal with terrorists
within the framework of the Constitution and a well balanced democracy?

Her account of gross and systematic abuses is well documented and horrifying. One
sometimes finds it hard to believe that she is writing about the United States. However,
by not offering any other way to fight terrorism, she leaves the impression that no
significant changes are needed in our laws, which is hardly what Wittes and Bobbitt show.
The fact that the Bush Administration went overboard, way overboard, does not
necessarily mean that we should or can deal with terrorists by simply adhering to the
Geneva Conventions, or that we should deal with them as if they were garden variety
criminals. In effect, a case can be made that the best way to ensure that no such abuses
occur in the future is to make some limited, and above all closely monitored, adaptations
to our laws. One should not overlook the fact that not only our laws but the Constitution
itself is a living document that has been repeatedly reinterpreted to take into account
changing social and historical conditions. Thus over the last decades, well before Bush,
numerous doors were opened in the wall that supposedly separates state and church. The
right to free speech was greatly extended , to put it mildly, thanks to ACLU's endeavors
in the 1920s. And a wholly new right, to privacy, was forged rather recently.

Mayer is a journalist who works by telling anecdotes. Bobbitt and Wittes are legal
scholars. Bobbitt points out, in a highly convincing manner, that none of our old models
of thinking fit the new world. The traditional concepts of nation, war, and terrorism, and
major parts of domestic and international law--must be recast. Neither the notion of
treating terrorists as enemy soldiers nor that of dealing with them as criminals will do.
Correctly, Bobbitt is especially concerned about the combination of terrorists and WMDs.
Hence, he is calling on us to find ways to abide by our laws but also realize that they
must be changed. The specifics Bobbitt's powerful book provides are highly nuanced and
complex, but not fully worked out. However, he wisely avoids the trap Mayer falls into,
by judging the ways we deal with terrorists by the laws forged for soldiers wearing
uniforms that identify them as combatants and indicate which state is accountable for
them. In short, in my words, much of the Geneva Conventions do not apply to terrorists
and the rest will have to be updated.
If Bobbitt approaches the world from 30,000 feet, Wittes' feet are firmly planted on the
ground. He provides a fine compliment to Bobbitt by in effect adopting the basic precept
that our basic concepts, laws, and treaties must be adapted, and he goes a fair way to
outline what must be. For instance, while he rejects the ways Bush et al acted, he favors
extended incarceration of terrorists, under procedures to be worked out by Congress, i.e.
via new laws, rather than by judges. The detainees will have access to a court, but only to
a special one, and will be treated fairly and in line with procedures to be established, but
will not be able to enjoy the full rights Americans are entitled to. Wittes would maintain
the ban on torture but would allow for some flexibility in integration methods in
emergencies. And he acknowledges that what is considered reasonable search must take
into account new electronic technologies and new means of communication.

All three books are much richer than can be laid out here. However they all point to the
same general conclusion: between mechanically applying pre 9/11 percepts and going
wild, lies a world largely yet to be charted. It is a world of carefully modified laws and
institutions that take into account the new kind and level of terrorism, without sacrificing
our basic commitments to freedom and rights. We need a new Geneva Convention, rather
than vainly seeking to apply the old one or running circles around it.

Amitai Etzioni is a professor of international relations at The George Washington
University. For more discussion, see Security First (Yale 2007). To contact him, write or visit