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by Keith Pavlischek

Human Rights and Justice in an Age of Terror

An evangelical critique of An Evangelical Declaration Against Torture.

War is a dreadful thing, and I can respect an honest pacifist, although I think he is entirely mistaken. What I cannot understand is this sort of semi-pacifism you get nowadays which gives people the idea that though you have to fight, you ought to do it with a long face and as if you were ashamed of it. (C.S. Lewis, Mere Christianity)

When a religious scheme is shattered it is not merely the vices that are let loose. The vices are, indeed, let loose, and they wander and do damage. But the virtues are let loose also, and the virtues wander more wildly, and the virtues do more terrible damage. The modern world is full of the old Christian virtues gone mad. The virtues have gone mad because they are isolated from each other and are wandering alone. Thus some scientists care for truth; and their truth is pitiless. Thus some humanitarians only care for pity; and their pity (I am sorry to say) is often untruthful … .(G.K. Chesterton, Orthodoxy)


In March 2007 a small group of evangelical academic theologians and activists released An Evangelical Declaration Against Torture: Protecting Human Rights in an Age of Terror, a document that was subsequently published in The Review of Faith and International Affairs, along with a commentary by David Gushee, the lead drafter. What follows is my own effort—as an evangelical, a political philosopher, and a recently retired intelligence officer in the United States Marine Corps with a long history of both scholarly and personal interest in these matters—to engage the issues they have raised. I hope that this response will give rise to further discussion and clarification of these vitally important matters, and help provide guidance for evangelicals who wish to speak coherently and responsibly on these and similar issues of public concern.

The first thing to note about the Declaration is that the title is a bit misleading, as it might give the impression that the document will focus on moral issues specifically related to the problem of torture. However, the Declaration itself confesses that it will address  "a broader discussion of policies related to the legal standards that would be employed in detaining, trying, transferring, or punishing suspected terrorists … ."(1.5) Indeed, Professor Gushee notes in his commentary, "How To Read the Declaration Against Torture," that "One might say that the agenda of the document … evolved from "ban torture" through "protect detainees" to end up with "protect the rule of law." (63)

The Declaration thus concludes with a set of broader and highly controversial issues other than torture. For example, the document criticizes the administration's policy decision to retain "questionable interrogation techniques," even those that would not be labeled torture, "among the options available to our intelligence agencies" (6.12); it labels "deeply lamentable" certain deficiencies in the Military Commission Act (2006) (6.14, 6.15). Moreover, the Declaration calls upon every agency of the U.S. government to adopt the Department of Defense's standards for interrogation found in the Army's interrogation manual. Whether one agrees or disagrees with the particular policy advice of the Declaration's conclusions, then, it cannot be fairly read as merely an attempt to delineate the range of morally and legally permissible interrogation techniques from those that are immoral and that ought to be illegal, or to demarcate a red line for techniques that constitute "torture" from those that are "questionable" or not-torture.

Indeed, shortly after release the Declaration was criticized for failing to define with any precision what constitutes torture, and I confess that I find it odd that a theological-moral teaching document on torture would fail to define the terms of the discussion. At the very least, one might have expected the Declaration to comment on the definition in the 1985 UN Convention on Torture, to which the United States is a signatory and to which it is bound by law, where torture is defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person."  If achieving civil disagreement (if I may paraphrase John Courtney Murray, who taught us that achieving disagreement was no small accomplishment) is to be an important objective of these sorts of declarations, that goal is more hindered than advanced by the refusal to carefully define the central term of the discussion. This failure will likely result in unfortunate polemics by those eager to equate opposition to the Declaration with support for torture.

More substantively, in failing to define torture with any degree of precision, the Declaration missed an opportunity to open a serious discussion of the moral permissibility of "enhanced interrogation techniques," or "moderate physical pressure" or what some critics pejoratively and prejudicially term "torture lite." The Declaration thus fails to address with any rigor what is perhaps the most serious real-life point of contention in detainee policy: whether it is morally permissible (and legally permissible for non-DOD personnel) to employ interrogation techniques on unlawful enemy combatants that otherwise would not be permissible to employ on lawful enemy combatants, or honorable captured soldiers held in POW status. I will address this and related issues in the final section of this essay.

Because the authors make no attempt to address the issue of torture with any degree of specificity or rigor, I am compelled to engage the Declaration on the "broader issues," particularly the political theology upon which that broader set of conclusions are grounded. But I suspect that, in any case, Professor Gushee and I would reach quite similar conclusions on the range of interrogation techniques that should be termed "torture," and hence be banned without exception. And I suspect there would be little daylight between our respective criticisms of the abuses at Abu Ghraib. (For the record, I believe that far more military heads should have rolled and military careers been summarily terminated for gross failure of leadership and command discipline, regardless of direct culpability for the abusive treatment.) I am more concerned with the political theology and the moral reasoning upon which the conclusions of the Declaration are grounded. In particular, I will investigate the success of Professor Gushee's and the drafters' attempt "to write an intellectually substantive, biblically rooted, theologically rich, definitively Christian treatment of U.S. detainee policy and practice in the war on terror." I will argue that, despite their praiseworthy intentions, the authors failed to "move beyond the kinds of brief declarations and slogans that often circulate on torture and other controversial moral issues and instead tried to offer a serious analysis of a crucial set of moral concerns." (61) And secondly, I will explore the charge of the Declaration's critics that it is a pacifist or quasi-pacifist document. These are matters on which we as Christians can in good conscience disagree, and my response is offered in that spirit.

Overview of the Declaration

The Declaration opens with a section devoted to a biblical defense of the "sanctity of human life," which flows into the next section's defense of "human rights," defined as those rights that "can not be cancelled or overridden," among the most important of which are the "security of persons." The argument then takes a slight detour in the next section with a survey of "Christian History and Human Rights." In his commentary, Professor Gushee describes this as a "thrust in a intra-Christian argument on the concept of human rights." The document then includes a section on "Ethical Implications for Human Rights," with sub-sections on individual responsibility, the role of the church, and the role of the state.

While I will shortly comment on some significant omissions in the section on the "role of the state," suffice it to say that apart from a sentence saying, "In the light of the sinfulness of humanity there is a need for the protection and restraint of laws," we get nothing close to an exposition of what that might entail nor any serious exposition on when or under what conditions or in response to what type of behavior the state might deprive individuals of basic human rights such as life, liberty, or property. That is to say, the "rights language" insisted upon in the document is almost entirely the rights of individual immunity. The rights and obligations of legitimate political authority to protect and defend the commonweal are seriously underdeveloped. This is an odd omission for a document staking out a position on issues related to detainee policy in "an age of terror."  Following the "Ethical Implications" section, the document then proceeds to a section on "Legal Structures regarding Human Rights" with a breezy survey of international and U.S. law and concludes with the specific recommendations in the final section "Human Rights in an Age of Terror."

The most fundamental problem with the Declaration is that it seeks a wide consensus not only on a set of controversial policy conclusions broader than those related to the issue of torture but also at the level of political theology, upon which the more particular conclusions are grounded. Were the sought-after consensus restricted to the narrow issue of torture or perhaps a few carefully defined issues related to the broader issue of detainee policy, these difficulties might not be so problematic. But the Declaration seeks to justify these broader legal and public policy conclusions with a moral-theological-political argument and an awful lot of biblical proof-texting. Here it is worth noting that one will search in vain for a careful reflection on Romans 13 or other classical biblical texts directly related to the normative role of civil government, the obligations of civil authority to protect its citizens, or those relevant to retributive justice or punishment. As a result, at the precise point where the moral argument needs to be bolstered—the moral obligations of public legal authority in an age of terror—the document has nothing to say that is persuasive. In the very sections where one might expect clarity from evangelical theologians, we are given ambiguity. And where we would expect some degree of theological rigor we get superficiality.

However, the Declaration can't help but be superficial, lest a more rigorous argument compromise the consensus. The political theology of the document seeks to win approval both from evangelical pacifists with theological and ecclesiastical roots in the "peace church" tradition and from those with theological and ecclesiastical roots in the broader non-pacifist, just war traditions (e.g., Lutheran, Reformed, Wesleyan, and non-pacifist Free Church traditions), on the other.

The discussion of "Human Rights" in the Declaration opens with an absolutist definition: "Human rights function to protect the dignity of human life. Because human rights guard what God has made sacred, they cannot be cancelled by any other concern, nor can they be bracketed off as irrelevant in exigent circumstances. This is in contrast to the view that a right can be cancelled or overridden." (3.1) "Human rights," the document declares, "place a shield around people, even when (especially when) our hearts cry out for vengeance." (3.2) The Declaration tells us that in "social contract theory human rights are called unalienable rights" and that unalienable rights are absolute and completely inviolable; a person cannot legitimately cease to have those rights, whether through waiver, fault, or another's act," and that while this all is not "Biblical vocabulary, it does seem to us consistent with biblical understanding of human rights." (3.3)

Now, if the "right to life" can never be "bracketed off," can never be "cancelled or overridden," cannot be surrendered through "waiver, fault, or another's act," one may reasonably ask how it is possible for civil authority to wage a just war that permits and even obligates some citizens to kill enemy combatants, deprive a person of life as a punishment for a capital crime, or in lesser cases, of liberty, property and the pursuit of happiness through imprisonment. The Declaration not only seems oblivious to the difficulty, but it prejudices the argument by denouncing "vengeance" (which is left undefined) as a response to terrorist attacks, without carefully articulating the difference between private vengeance and the just public use of force by political authority. Simply denouncing as morally illicit "vengeance" without contrasting it to the just alternative and doing so at precisely this foundational stage of the argument unfairly prejudices the issue. It gives the impression that all retributive notions of justice are morally questionable forms of public vengeance.

Nowhere in the Declaration is there anything remotely close to a substantive biblical or theological discussion of this most fundamental question of public justice. The only section of the document where the issue is hinted at, though still not explicitly commented upon, is in paragraph 3.7. Since "human life is expressed through physicality, and the well being of persons is tied to their physical existence," we must conclude that "humans must have the right to security of persons. This includes the right not to have one's life taken unjustly … ." That's it! But, one may ask, what warrant is there for that word "unjustly?" Where did that idea come from? What does it mean? How does it concretely relate to the "sanctity of human life" and to "inalienable human rights?"  How is the just taking of human life, liberty, or property by public authority distinguished from mere "vengeance"? Since there is no substantive discussion of these issues in the sections on the "Sanctity of Human Life" or "Human Rights," the careful reader might hope that they would be addressed later in the section on the "Ethical Implications of Human Rights," certainly in the subsection "The Role of the State" (5.6-5.12). But you don't find it there, either.

Of course, a detailed explication might well lead to the conclusion that a person's basic human right to life can be forfeited and can be justly taken by an agent of the state. Is that what the signatories of the Declaration actually believe? Perhaps an excessively charitable reading of the Declaration might lead to that conclusion. But there are quite good reasons not to be so charitable. We know that this can't possibly be the correct interpretation of the Declaration because the document has the express approval and endorsement of pacifists who explicitly deny that lethal force is ever warranted or "just."

In the first paragraph of the concluding section titled "Human Rights in an Age of Terror," referring to the terrorist attacks in New York, Washington, London, Madrid, Bali, Casablanca, Amman, and elsewhere, the document "condemns" these activities and the "terrorist ideologues that foment them." (7.1) In the subsequent paragraph, we are told 

It is certainly the responsibility of a nation's government to protect its people from such callous and cruel disregard of human life [endnote 60]. Our military and intelligence forces have worked diligently to prevent further attacks. But such efforts must not include measures that violate our own core values. (para 7.2).

At endnote 60 the careful reader will find one of those seemingly innocuous throwaway lines that upon closer examination turn out to be most important. "The majority of the signatories of this document stand in the just-war tradition. Those who are pacifists believe that government should carry out its important responsibilities using non-lethal methods." The document had to be written such that its political theology, and not merely its conclusions related to terror and detainee policy, would be acceptable to anti-war pacifists.

Now, I suspect I'm not alone in finding risible the suggestion that non-lethal tactics and weapons are the only morally permissible means that police and military forces may use to protect the innocent from terrorists. One might also be forgiven for thinking that were the views of the pacifist signatories widely accepted, moral issues surrounding of the rights of captured terrorists would be a moot point, since the prospect of Islamic radicals surrendering to those who pose no lethal threat would be rather slight.

But whatever we may think of the practical effects of the pacifism espoused by the evangelical pacifist signatories of the Declaration, we can nevertheless appreciate their logical consistency. When the evangelical Christian pacifist tells us that "because human rights [such as the right to life] guard what God has made sacred, they cannot be cancelled by any other concern, nor can be bracketed off as irrelevant in exigent circumstances" and that this "is in contrast to the view that a right can be cancelled or overridden," (3.1) or when they say that "a person cannot legitimately cease to have [human] rights whether through waiver, fault or another's act," or that "a commitment to life's sacredness and to human rights is a seamless garment" that "cannot be torn anywhere without compromising its integrity everywhere," (7.11) one can appreciate that the evangelical pacifists mean what they say. And hence, there really is no reason to expect careful explanation on why it might be just for the state to employ lethal or other forms of coercive force against terrorists in this or that particular instance. When they say that the human right to life is absolute and can't be "cancelled" or "trumped," they mean it. Period. And that, one suspects, is why the non-pacifist signatories did not insist upon a more careful discussion of issues related to the obligation of the state, or the rights of public authorities and their representatives, or a careful discussion of issues related to retributive justice, or penology or when the use of lethal and non-lethal force is just.

On the other hand, one might think that the non-pacifist signatories do believe that the most basic human right, the right to life, can be justly "cancelled" or justly "trumped" or subject to qualification, even though the rhetorical trajectory of the document runs counter to that interpretation. One can't help but suspect that in order to keep the pacifist wing from jumping ship, the contradictions and implications of the non-pacifist wing had to be suppressed in the political theology of the document. Were those contradictions and implications not suppressed, the reader might be tempted to ask the obvious question: if a person's "right to life" may legitimately be "cancelled," "trumped," or "subject to qualification," then why not his "right" to be free from interrogation methods that, while unpleasant, nevertheless do not qualify as torture?

Indeed, given the rights-based methodological logic of the Declaration, you can only justify a ban on outright torture if you accept the more rigorous pacifist-absolutist interpretation of the "sanctity of human life" and the pacifist-absolutist understanding of human rights. A non-pacifist simply cannot reach the absolutist conclusion prohibiting torture, at least with the Declaration's method of moral reasoning. After conceding that the most fundamental human right to life can, after all, be "trumped" or "cancelled", you may be able to reach an absolutist conclusion on torture, but it will require a bit more intellectual effort, a more sophisticated line of reasoning, and certainly the key questions and issues related to the just use of force can't be dodged.

Here, it is worth noting that in his commentary on the Declaration, Professor Gushee responds to critics, saying,

Notice that in our treatment of human rights we never say that combatants have the right not to be killed, or that it is immoral to kill on the battlefield. Some have derided the text's "pacifist leanings," but this is demagoguery, or at least a blatant misreading. Though some pacifists found themselves able to sign it, ours is not a pacifist statement.

Professor Gushee seems to believe that being methodologically agnostic on the claim "combatants have the right not to be killed," or "it is immoral to kill on the battlefield," is irrelevant to the moral reasoning of the Declaration and its substantive conclusions. But it is relevant because it has everything to do with whether the "right to life" can be justly overridden, and where one stands on this issue can't fail to substantially impact how one concretely understands the "sanctity of life" and the nature of "human rights," not to mention the substantive conclusions regarding torture, international law, and U.S. detainee policy. Superficiality and incoherence is the price paid for being methodologically agnostic on such a profound, foundational question.

Nor is the issue Professor Gushee's personal anti-pacifist belief that "While killing an enemy combatant on the battlefield can be justified, torture of a detained and disarmed prisoner cannot be similarly justified." I share Gushee's conviction. Ron Sider, the staunchly pacifist co-author of the Declaration, rejects it. But we simply have no sound exposition in the Declaration telling me why I can (to state the argument in terms of the Christian pacifist) violate the basic human right to life (and in the just war tradition have a moral obligation to do so) in the first instance, but never in the second. Why just war and not just torture? If Gushee's anti-pacifist convictions were incorporated into the moral reasoning of the Declaration, the moral-theological premises related to the "sanctity of human life" and "human rights" would have to be significantly modified.

To illustrate this, consider a statement toward the end of the Declaration in the Section, "Conclusion: Human Rights in An Age of Terror." It is worth stressing that this is a conclusion to a moral-political-theological argument based on the preceding sections related to the sanctity of human life and human rights.

When torture is employed by a state, that act communicates to the world and to one's own people that human lives are not sacred, that they are not reflections of the Creator, that they are expendable, exploitable and disposable, and that their intrinsic value can be overridden by utilitarian arguments that trump that value. These are claims that no one who confesses Christ as Lord can accept.(7.9) (emphasis added)

I would challenge a careful reader to explain why, based on the moral reasoning of the document up to this paragraph, one would not also reach the following conclusion:

When killing in war  is employed by a state, that act communicates to the world and to one's own people that human lives are not sacred, that they are not reflections of the Creator, that they are expendable, exploitable and disposable, and that their intrinsic value can be overridden by utilitarian arguments that trump that value. These are claims that no one who confesses Christ as Lord can accept.

Let's call the first paragraph the "anti-torture" conclusion of the Declaration and the second the "anti-war" or "pacifist" conclusion. Professor Gushee obviously affirms the first, but he rejects the second since he believes one may justly kill on the battlefield and because he believes enemy soldiers on the battlefield have no "right" not to be killed. But the pacifist signatories, such as Ronald Sider, affirm both. What is far from evident is whether the moral reasoning of the Declaration would not yield both conclusions.

Ronald Sider (one of the drafters on the steering committee) and the other pacifist signatories embrace an absolutist position: never violate the sanctity of human life or the human rights that flow from that premise. That means never kill in war and never torture. (Whether they support "violent" coercion short of lethal force is not clear and would help clarify matters were they to defend "nonviolence" more rigorously.) There is nothing logically incoherent in this position. However, the non-pacifist signatories seem to be saying "do no evil, never violate the sanctity of human life or the unexceptionable human rights that flow from that premise, except when it comes to killing in war." This position does seem incoherent.

Can the Declaration Be Salvaged as a "Teaching Document"?

The short answer is, No. To be salvaged from its superficiality and its incoherence, the Declaration's political theology would have to be revised in one of two ways, each of which must prove unacceptable to the other party. But resolving the problem at the level of political theology in a manner acceptable to anti-war pacifists would require only a minor alteration. It is hard to understand how a pacifist committed to the conviction that only non-lethal force by the state is morally licit could fully affirm the Declaration's statement that "humans must have the right to security of persons. This includes the right not to have one's life taken unjustly … ," for it implies that one's life can be taken justly. To remove this ambiguity, simply drop the word "unjustly" and the document would then be unambiguously a pacifist document. And then it would unambiguously yield both the anti-torture and anti-war conclusions in the paragraphs cited above. And then, rather than burying the conviction that the state may only use non-lethal means to protect its citizens against terrorists in an endnote, it might be incorporated into the foundational political theology of the document. The Declaration, no doubt, would not be acceptable to non-pacifists, but it would at least be intellectually rigorous and logically coherent.

Significantly, rendering the document coherent and acceptable to evangelical non-pacifists, especially to those who embrace the classic Christian just war tradition, would require considerably more effort and substantially more rigorous discussion of issues related to retributive justice, penology, and more generally a discussion of what constitutes the just use of lethal force by political authority. If it is to talk about "vengeance," we might expect some discussion of what distinguishes that from "justice." At the level of moral theology, it would require an explication of Christian teaching and reflection on ideas such as "guilt" and "innocence" and their application to the "war on terror." In short, the Declaration would have to repudiate its agnosticism about these fundamental moral-political-theological questions, and unapologetically plant itself in the soil of the Christian just war tradition.

Legal and Illegal Combatants: The Substantive Deal Breaker

I now want to conclude with a commentary on the moral and political distinction between lawful and unlawful combatants insisted upon by the Bush administration and explicitly enacted into in the Military Commissions Act. A careful reading of the Declaration will yield, I think, an implicit attack on that distinction (which is why the Declaration insists on extending the DOD joint interrogation doctrine to "other agencies"). A more careful document (which admits it has to do not merely with "torture" but with detainee policy more generally) would have addressed the issue explicitly and hence would have defended either granting the full panoply of rights and privileges due to lawful combatants (POWs) or full substantive and due process rights due to ordinary American criminals.

The Declaration seems to imply that the United States has an obligation to provide detained terrorists the full panoply of rights, privileges, and immunities of lawful enemy combatants, identical to honorable soldiers captured on the battlefield and held in POW status:

During the American Revolution, our soldiers were mistreated by the British. Our nation has worked diligently since then to provide legal protection to any person in the custody of the enemy through laws of war. The Geneva Conventions and the Additional Protocols of 1977 are the most recent version of this protection. (6.7)

This statement, as we shall soon see, is profoundly misleading.

Moreover, the Declaration finds "troubling" and "deeply lamentable" precisely the section of the Military Commissions Act that lays out the distinction between lawful and unlawful combatants and which defines "unlawful enemy combatant" as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." The Declaration finds this passage "deeply lamentable" (6.14) in "substance" as well as in its violation of "basic principles of due process" especially in relation to the phrase "purposefully and materially" and  "engaged in hostilities." "Anti-U.S. hostilities," the Declaration complains, "is a vague term that a future administration can use against anyone perceived as its enemy."  The Military Commissions Act, more generally, "violates the basic principles of due process that have developed in Western judicial systems."

Why have the administration and Congress (thus far) insisted on this distinction, and why should evangelicals defend it? If evangelicals do insist on this distinction, and reject the insistence that unlawful enemy combatants are owed the full protection of the terms of the Geneva Conventions (as suggested in 7.11.c), or full due process rights of American citizens, can they fairly be accused by Professor Gushee and the leadership of the National Association of Evangelicals (which has endorsed the document) of being opposed to the "sanctity of human life" or to "inalienable human rights?"

The argument in favor of the distinction between lawful and unlawful combatants has legal and moral components. First, from simply a legal standpoint, terrorists fighting for Al Qaeda and other associated extremist organizations are presumptively not covered by the 1949 Third Geneva Convention of Prisoners of War (GCPW). Under the Geneva Conventions combatants in international conflicts are permitted to commit acts of belligerency that otherwise are not permitted to the private individual. Such combatants, if captured, have a right to special treatment as prisoners of war, and their rights extend far beyond the right not to be tortured. Article 17 asserts, for instance, that "no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war." The Declaration, it seems, is not only suggesting that detained terrorists have a right not to be tortured but that they have a right to be free "from any other form of coercion."  

One hastens to observe, however, that the right to this treatment does not extend to any guerrilla, militia, irregular, or terrorist engaged in an international conflict. To be sure, Article 4 of the GCPW, in addition to affording combatant status to regular armed soldiers, also gives sub-national, irregular forces (guerrilla forces) the chance to opt into its framework. But it does so under but under restricted conditions:

Members of other militias and members of voluntary corps, including those of organized resistance movements, belonging to a Party to the conflict … provided that such militias or volunteer corps, including resistance movements, fulfill 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.

These conditions effectively preclude members of Al Qaeda and other non-uniformed terrorists from the right to special treatment as prisoners of war.

Most fundamentally, these provisions require that force be used "in accordance with the laws and customs of war." A volume could be written on the history and development of the "laws and customs of war," but they can be summarized as an attempt to incorporate the jus in bello principle of noncombatant immunity into international agreements, with the single and overriding purpose of protecting civilians and civilian infrastructure during time of war. We may call this a "preferential option for protecting noncombatants." But, of course, terrorist organizations such as Al Qaeda exist precisely to flout those laws and customs by refusing to wear arms openly by living in and among civilians and civilian infrastructure, the better to attack both in stealth. They thus obviously have chosen not to meet the terms required to gain the privileges and immunities of GCPW.

We can be quite confident that this is, in fact, an accurate interpretation of the GCPW because in 1977 there was an explicit attempt to modify the terms to cover belligerents in the kinds of wars waged by sub-national irregulars engaged in "movements of national liberation." This is Protocol I, mentioned favorably in the Declaration.

Now, many of the Geneva Convention's high contracting parties did adopt Protocol I. But they did so precisely because, as it was written, the GCPW does not protect sub-national irregular forces that refuse to opt in under the GCPW's provisions. And, a fortiori, it does not protect transnational terrorist organizations. In any case, the United States declined to join Protocol I, and because it, like the Geneva Conventions, is a treaty it does not become law of the United States without Congressional ratification. So-called "international law" obligations may not be imposed on the United States absent an act of Congress. As a purely legal matter, then, the United States is under no treaty obligation to treat detained unlawful enemy combatants (e.g., members of Al Qaeda and associated groups) exactly as we would lawful and honorable enemy combatants. They simply are not covered by the Geneva Convention on Prisoners of War.

That summarizes the legal case. What of the moral argument? Is this an issue between the children of light (staunch evangelical defenders of international human rights) and the children of darkness (right-wing colonial-imperialist evangelical opposition to human rights)? Is the U.S. refusal to ratify Protocol I evidence of the opposition of the United States to human rights? Here it is worth noting that Professor Gushee, in his commentary on the Declaration, seems to have clearly taken a stand with the former.

Most of the drafters were theologians and ethicists rather than human rights lawyers and so this section [section 6] turned out to need a bit of fine tuning once it saw the light of day in mid-March. We are grateful for the line-by-line refinements that various lawyers contributed to this section after its initial release. I learned from this process not just to appreciate international human rights and humanitarian lawyers but also that the U.S. had actually been edging away from its unequivocal support of international human rights treaties and conventions for some time, not just since 9/11—and that it is actually a mistake now to describe our nation as a leader in protecting human rights. (62)

Before evangelicals rush to join Professor Gushee, perhaps they should pause to consider the moral logic behind the more stringent requirements of the 1949 GCPW and the hesitation to extend the full panoply of rights and privileges to captured terrorists. The insistence that combatants openly appear as soldiers (fixed distinctive signs recognizable at a distance, carry arms openly, etc.) is grounded in the conviction that in so doing they can be clearly distinguished from civilians. All combatants can then reasonably assume that those who appear to be civilians really are civilians, that they pose no threat, and that they are thus immune from direct and intentional attack.

It is, of course, the very raison d'être of terrorist organizations such as Al Qaeda to reject the combatant-noncombatant distinction root and branch. Andrew McCarthy puts it well:

[T]he treaty's provisions call for protecting civilians and civilian infrastructure. Al Qaeda's idea of a weapon in open view is a hijacked jumbo jet in the seconds before it crashes into a building. Otherwise, it favors roadside bombs or high explosives concealed in vans burrowed in underground garages beneath bustling civilian skyscrapers. The provisions call for wearing uniforms in order to distinguish members as authentic soldiers. Al Qaeda's jihadists dress and conduct themselves ostensibly as civilians—the better to hide from real armies and lull actual civilians to their deaths. ("Geneva and Savagery")

The Declaration, in effect, calls for granting to terrorists the full panoply of rights granted by the Geneva Convention without requiring them to meet the obligations required by it. That's bad enough. But the Declaration further suggests that, should evangelicals such as myself resist such claims, they are insufficiently attentive to the "sanctity of human life" and to "human rights." What the Declaration fails to appreciate, however, is that this insistence is itself a betrayal of the civilizing impulses of the Geneva Convention and more fundamentally a betrayal of the Christian just war tradition's theological and historical contribution to that civilizing impulse. As McCarthy puts it:

On the Third Geneva Convention, literal terms aside, I believe it is a betrayal of the treaty's civilizing impulses to grant its benefits to those who refuse to take up its burdens. Geneva's raison d'etre is to impel warriors to conform to its civilian-protective standards. If you reward barbarity by treating terrorist operatives as if they were honorable combatants, you are guaranteeing more barbarity. ("Geneva … Again," emphasis mine)

The Declaration not only "grants" the full rights and privileges of honorable soldiers captured on the battlefield to terrorists; it grounds them in a claim to inalienable human rights and the "sanctity of human life."

The signatories and the NAE leadership can avoid this rather unhappy conclusion in one of two ways. They can embrace the stringent requirements of the Geneva Convention and embrace the legal and moral distinction between lawful and unlawful combatants. But then, they would have to surrender their insistence that captured Al Qaeda terrorists be afforded all rights and privileges due to captured enemy soldiers under the Geneva Conventions. And then, perhaps, (after defining "torture") they can join the rest of us in a civil discussion on what interrogation methods short of torture should be permissible, and under what circumstances.

Or, on the other hand, and more ominously, they might choose to reject the legal and moral distinction between lawful and unlawful combatants, and embrace the idea popular in the secular "human rights" and "humanitarian law" community that Al Qaeda terrorists should not be treated as either lawful or unlawful combatants but rather as ordinary criminals, with all the substantive and due process rights, including full legal discovery, afforded to American citizens.

Let me suggest, on the contrary, that on this most fundamental issue, the U.S. position in general and the Bush administration's position in particular is not only in full accord with the Christian just war position, but, in insisting on the distinction in law and policy, it seeks to preserve a fundamental moral insight of the Christian just war tradition, indeed of Western civilization itself, one which evangelicals ought defend unequivocally.

International terrorists deserve to be treated justly. They do not deserve to be treated either as lawful combatants with the full rights due to honorable prisoners of war, or as ordinary criminals, with all the attendant due process rights. They are not ordinary criminals; rather, they are part of a global political-religious-ideological insurgency that employs terror as one means toward a well-articulated political end. However much we may quibble over the precise distinctions between what we do owe unlawful combatants by way of treatment or due process after capture, in distinction from that which we owe lawful combatants after capture, justice requires us to treat them precisely as the administration treats them, as unlawful enemy combatants.

This is no minor point between those of us who would defend the classic just war tradition against the pacifist and quasi-pacifist signatories to the Declaration. To illustrate my point that there is something profound at stake here, let me call attention to an illuminating passage from The Wine-Dark Sea, the sixteenth volume of Patrick O'Brian's masterful twenty-volume series of historical novels set in the Napoleonic period in the late 17th and early 18th centuries. Captain Jack Aubrey, captain of the British ship Surprise, has taken captive the American privateer, Franklin. The sailing-master of the Franklin had been killed in the battle, but the owner of the ship, the Frenchman Jean Dutourd, survived. O'Brian's description is priceless:

Dutourd, a man of passionate enthusiasms, had like many others at the time fallen in love with the idea of a terrestrial Paradise to be founded in a perfect climate, where there should be perfect equality as well as justice, and plenty without excessive labour, trade, or the use of money, a true democracy, a more cheerful Sparta; and unlike most others he was rich enough to carry his theories into something like practice, acquiring this American-built privateer, manning her with prospective settlers and a certain number of seamen, most of the people being French Canadians or men from Louisiana, and sailing her to Moahu, an island well south of Hawaii, where with the help of a northern chief and his own powers of persuasion, he hoped to found his colony. (28)

 Stephen Maturin, surgeon, natural philosopher, intelligence officer, and Captain Aubrey's closest friend, had met Dutourd before. Maturin, who holds decidedly more republican sympathies than his Tory captain, thought Dutourd, despite seeming to be benevolent enough,  "to have been misled first by that mumping villain Rousseau and also by his passionate belief in his own system, based as it was on a hatred of poverty, war and injustice, but also on the assumption that men were naturally and equally good, needing only a firm, friendly hand to set them on the right path, the path to the realization of their full potentialities." (p. 32)

Upon the capture of his vessel, the prisoner Dutourd was brought to Captain Aubrey's quarters to formally consummate the surrender:

Doutourd's most recent sailing-master had been an exact, an orderly person as well as a tout skipper and an excellent seaman, and Doutourd handed over a complete set [of official papers] wrapped in sailcloth.
Jack looked through them with satisfaction; then frowned and looked though the parcels again. 'But where is your commission, or letter of marque?'
'I have no commission or letter of marque, sir,' replied Dutourd, shaking his head and smiling a bit. 'I am only a private citizen, not a naval officer. My soul purpose was to found a colony for the benefit of mankind.'
'No commission, either American of French?'
'No, no. It never occurred to me to solicit one. Is it looked upon as a necessary formality?'
'Very much so."
'I remember having received a letter from the Minister of Marine wishing me every happiness on my voyage; perhaps that would answer?'
'I am afraid not, sir. Your happiness has included the taking of several prizes, I collect?'
'Why, yes, sir. You will not think me impertinent if I observe that our countries, alas, are in a state of war.'
'So I understand. But wars are conducted according to certain forms. They are not wild riots in which anyone may join and seize whatever he can overpower; and I fear that if you can produce nothing better than the recollection of a letter wishing you every happiness you must be hanged as a pirate.'
'I am concerned to hear it … .'

Absent a commission or a letter of marque from a recognized member of the community of nations, the Franklin and the private citizen Dutourd were no more authorized to take "prizes" (attacking ships on the high seas) than were mere criminals (pirates) who did it for private gain. Indeed, they were in a moral sense worse than pirates seeking private gain, for they undermined the authority (in terms of the jus ad bellum the criteria of right authority) by which war could be waged. By doing so, the otherwise benevolent Dutourd was assaulting the laws and customs of war and undermining the just war tradition's insistence that "wars are conducted according to certain forms" and are not "wild riots" which anyone can join.

Captain Aubrey captures the proper Christian sensibilities in the matter in contrast to the rights-bearing, egalitarian, war-hating, poverty-hating Dutourd. Nobody familiar with O'Brian's Aubrey-Maturin canon will mistake Jack Aubrey as a model of Christian piety. But he was formed in a Christian culture (in his case an Anglican one) that understood quite well that civilization, even in times of war, rests on certain forms and behaviors. That letter of marque distinguished what was owed to honorable combatants and what was not owed to proto-terrorists like Dutourd.

In thinking about how they should respond to moral challenges such as torture in an age of terror, or in an age of Islamic-style Dutourds gone mad, if you will, American evangelical academic theologians and activists must come to grips with the proper moral and political distinctions that Christians have struggled with throughout the ages. Just so, the framers of the Declaration might have reflected on the distinction that came to Captain Aubrey quite naturally, that whatever non-state terrorists are owed, they don't deserve the same "rights" as honorable warriors captured on the field of battle, and from there seek to explain just what is and is not owed to them. But those distinctions seem to have eluded them.

Professor Gushee and his colleagues, having either explicitly repudiated classic Christian just war teaching or rendered it marginal or irrelevant, have disposed of centuries of Christian theological reflection on political responsibility, the nature of justice, and issues related to justice in war. To carry on the conversation, they need to re-engage with that tradition.

Keith Pavlischek is a senior fellow at the Ethics and Public Policy Center in Washington. D.C.

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