As the Army is in the midst of trying soldiers for abuses in Abu Ghraib and CENTCOM is conducting training classes reminding soldiers that murdering civilians is a violation of the Code of Conduct, the Pentagon is rewriting its training manuals to omit discussion of the Geneva Conventions’ rules against humiliating prisoners.
The Pentagon has decided to omit from new detainee policies a key tenet of the Geneva Convention that explicitly bans “humiliating and degrading treatment,” according to knowledgeable military officials, a step that would mark a further, potentially permanent, shift away from strict adherence to international human rights standards. The decision could culminate a lengthy debate within the Defense Department but will not become final until the Pentagon makes new guidelines public, a step that has been delayed. However, the State Department fiercely opposes the military’s decision to exclude Geneva Convention protections and has been pushing for the Pentagon and White House to reconsider, the Defense Department officials acknowledged.
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“The rest of the world is completely convinced that we are busy torturing people,” said Oona A. Hathaway, an expert in international law at Yale Law School. “Whether that is true or not, the fact we keep refusing to provide these protections in our formal directives puts a lot of fuel on the fire.”
The detainee directive was due to be released in late April along with the Army Field Manual on interrogation. But objections from several senators on other Field Manual issues forced a delay. The senators objected to provisions allowing harsher interrogation techniques for those considered unlawful combatants, such as suspected terrorists, as opposed to traditional prisoners of war. The lawmakers say that differing standards of treatment allowed by the Field Manual would violate a broadly supported anti-torture measure advanced by Sen. John McCain (R-Ariz.). McCain last year pushed Congress to ban torture and cruel treatment and to establish the Army Field Manual as the standard for treatment of all detainees. Despite administration opposition, the measure passed and became law.
For decades, it had been the official policy of the U.S. military to follow the minimum standards for treating all detainees as laid out in the Geneva Convention. But, in 2002, Bush suspended portions of the Geneva Convention for captured Al Qaeda and Taliban fighters. Bush’s order superseded military policy at the time, touching off a wide debate over U.S. obligations under the Geneva accord, a debate that intensified after reports of detainee abuses at Guantanamo Bay, Cuba, and at Iraq’s Abu Ghraib prison.
Among the directives being rewritten following Bush’s 2002 order is one governing U.S. detention operations. Military lawyers and other defense officials wanted the redrawn version of the document known as DoD Directive 2310, to again embrace Common Article 3 of the Geneva Convention. That provision — known as a “common” article because it is part of each of the four Geneva pacts approved in 1949 — bans torture and cruel treatment. Unlike other Geneva provisions, Article 3 covers all detainees — whether they are held as unlawful combatants or traditional prisoners of war. The protections for detainees in Article 3 go beyond the McCain amendment by specifically prohibiting humiliation, treatment that falls short of cruelty or torture.
The move to restore U.S. adherence to Article 3 was opposed by officials from Vice President Dick Cheney’s office and by the Pentagon’s intelligence arm, government sources said. David S. Addington, Cheney’s chief of staff, and Stephen A. Cambone, Defense undersecretary for intelligence, said it would restrict the United States’ ability to question detainees.
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Derek P. Jinks, an assistant professor at the University of Texas School of Law and the author of a forthcoming book on Geneva called “The Rules of War,” said the decision to remove the Geneva reference from the directive showed the administration still intended to push the envelope on interrogation. “We are walking the line on the prohibition on cruel treatment,” Jinks said. “But are we really in search of the boundary between the cruel and the acceptable?”
The military has long applied Article 3 to conflicts — including civil wars — using it as a minimum standard of conduct, even during peacekeeping operations. The old version of the U.S. directive on detainees says the military will “comply with the principles, spirit and intent” of the Geneva Convention. But top Pentagon officials now believe common Article 3 creates an “unintentional sanctuary” that could allow Al Qaeda members to keep information from interrogators. “As much as possible, the foundation is Common Article 3. That is the foundation,” the senior official said, speaking on condition of anonymity because the new policies had not been made public. “But there are certain things unlawful combatants are not entitled to.”
Another defense official said that Article 3 prohibitions against “outrages upon personal dignity, in particular humiliating and degrading treatment” could be interpreted as banning well-honed interrogation techniques. Many intelligence soldiers consider questioning the manhood of male prisoners to be an effective and humane technique. Suggesting to a suspected insurgent that he is “not man enough” to have set an improvised explosive device sometimes elicits a full description of how they emplaced the bomb, soldiers say. The Pentagon worries that if Article 3 were incorporated in the directive, detainees could use it to argue in U.S. courts that such techniques violate their personal dignity. “Who is to say what is humiliating for Sheikh Abdullah or Sheikh Muhammad?” the second official asked. “If you punch the buttons of a Muslim male, are you at odds with the Geneva Convention?”
Military officials also worry that following Article 3 could force them to end the practice of segregating prisoners. The military says that there is nothing inhumane about putting detainees in solitary confinement, and that it allows inmates to be questioned without coordinating their stories with others. Human rights groups have their doubts, saying that isolating people for months at a time leads to mental breakdowns. “Sometimes these things sound benign, but there is a reason they have been prohibited,” said Jumana Musa, an advocacy director for Amnesty International. “When you talk about putting people in isolation for eight months, 14 months, it leads to mental degradation.”
The Pentagon and Intelligence Community have valid concerns. For a variety of reasons, terrorists do not deserve the same level of protection as uniformed enemy prisoners of war. Further, the language of Article 3 is rather ambiguous when applied across cultures, especially the wide gulf between the West and the Muslim world.
Still, this is an incredibly hamhanded way of addressing these concerns. Even though our enemy by no means adheres to international law, our failure to do so undermines our moral authority. This is not a small thing, whether we’re talking about sustaining support at home, building coalitions with our Western partners, or even the “battle for hearts and minds” in the Arab world. That they don’t follow the Geneva protocols does not prevent our failure to do so from being used against us for propaganda purposes.
Furthermore, international law is almost invariably a matter of the United States and similarly-minded powers imposing our value system on the rest of the world, not vice versa. As such, it behooves us to live up to our agreements to maximize their legitimacy. To the extent changing circumstances make these agreements problematic, we should work to amend them.
That, however, is a can of worms we may wish to keep closed. That there is such a thing as human rights at all, let alone that they are universal, is hardly a consensus view. Seeking to clarify the rules for the sake of tailoring narrow exceptions may prove more trouble than it’s worth.
Update: In response to this report, Abu Musab al-Zarqawi issued the following statement:
The United States is a rogue nation that practices torture and detainee abuse and does not follow the most basic principles of the Geneva Conventions. It is inviolation of human rights agreements and the U.N. Convention against torture. It is legitimizing torture by every disgusting regime on the planet. This is a policy mandated by the president and his closest advisers.
Correction: The statement above attributed to al-Zarqawi was actually from TIME magazine blogger Andrew Sullivan. OTB regrets the error.
Update: Jeff Goldstein worries about “our tendency to define down torture to include ‘humiliation’” and thinks we need to balance moral/PR concerns against “humiliation’s” effectiveness as an interrogation tactic against an honor and shame culture.” Similarly, Sean Hackbarth states that, “If you think making prisoners endure cold, hot, loud music, and the occasional waterboarding is the rebirth of the Inquisition then you’re beyond my convincing. . . . Crimes have been committed. The case of an Afghani killed from being kneed scores of times is an example. However, Bush critics have set the torture bar so low the real crimes become noise.”
While I don’t disagree that there’s a distinction between torture and humiliation, Article 3, Section 1, Clause (c) prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Surely, we’re crossing that line on a regular basis. And we’ve pledged not to do so.
The proprietor of Cagey Mind weighs in with praise for the stance of the JAGs and believes, “[I]t’s good to know that there are lawyers (and soldiers) out there who take their oaths seriously – who recognize that importance of our guild.”
In an earlier post, I observed that, “As horrible as Abu Ghraib, Haditha, and other crimes committed under our watch may be, they are isolated and the offenders being investigated and punished by our government. That’s in rather stark contrast to systematic slaughter carried out as a matter of government policy [under Saddam].” But simply being morally superior to the terrorists and thugs we’re fighting is not enough; we set the standard.
