Covering the Front and Back Pages of the Newspaper
June 6, 2006
WAR: Rewriting The Army Field Manual
Jon Henke points us to this LA Times article citing anonymous sources discussing revisions supposedly* being made to the Army Field Manual regarding interrogation of detainees in response to the McCain Amendment, which was designed to raise the standards for treatment of unlawful-combatant detainees by having their interrogation governed by the Army Field Manual, which also applies to interrogation of, among others, lawful-combatant POWs. Henke quotes this passage:
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.
[T]his (again) means no more complaining that our enemies do not abide by the Geneva Convention. If we abandon the rule of law and our treaty obligations when it becomes convenient to do so, we can hardly complain that they've done so when it was convenient for them.
First of all, if you read only the first half of the LAT piece and Henke and John Cole and Andrew Sullivan, you would never know that (1) the changes at issue only apply to unlawful combatants, not to our treatment of proper POWs and (2) it is a stretch, at best, to say that the Geneva Conventions even apply to unlawful international combatants. Anyway, I've said my bit both about torture and "torture" here and here at much greater length; to summarize the relevant points here:
*It's pretty much an iron rule that when you link our treatment of unlawful combatants either to our treatment of lawful combatants (including properly organized domestic insurrectionists) or to our treatment of charged criminal defendants, you end up creating hydraulic pressure to water down the standards of treatment of either of the latter. We should resist at all turns such "linkage," but that doesn't mean we should have no rules at all. The battle against international terrorism will be a long one, and we need new, formalized rules to guide us in the long road ahead.
*We certainly shouldn't grant unlawful combatants or anyone else the protection of bilateral agreements they refuse to abide by, lest we undermine the incentive for others to abide by such agreements (treaties are contracts, after all, and we weaken rather than strengthen their force by giving away their benefits to those who don't reciprocate).
Before we go further, let's quote some additional detail from the LAT article that sheds a bit more light on the subject:
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.
This tells us that (a) this is a battle about linkage vs. non-linkage, not about overall treatment of all POWs, and (b) the LAT's likely sources here are in the Senate.
Article 3 [of the Geneva Convention] 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 military lawyers, known as judge advocates general, or JAGs, have concluded that they will have to wait for a new administration before mounting another push to link Pentagon policy to the standards of Geneva.
The LAT presents as holy writ its view of the Geneva Conventions, but only if you read to the end of the article do you find that
Common Article 3 was originally written to cover civil wars, when one side of the conflict was not a state and therefore could not have signed the Geneva Convention.
Anyway, if our behavior creates incentives for other countries to follow suit and create separate rules for the treatment of unlawful combatants, well, that's just fine. If it raises the cost of violating the laws of war, so be it. And if it encourages, in the long term, the creation of a new international standard on the American model for treatment of unlawful combatants, that would be wonderful, so long as we get our own rules right. It should not be forgotten that a successful rule of international law almost always starts as the law of one state or an agreement of a few states, rather than being drafted at the multilateral level and forced downward.
So, are we trying to get our own rules right?
The Pentagon tried to satisfy some of the military lawyers' concerns by including some protections of Article 3 in the new policy, most notably a ban on inhumane treatment, but refused to embrace the actual Geneva standard in the directive it planned to issue.
So, what's the issue?
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.
Now, we get to the rub of the debate in two critical ways. First of all, there's no way we should allow unlawful combatant detainees any access to US courts to complain about interrogation practices, period. If you give them that tool, they will use it against us as a tactic of war. If we have rules and they are violated, that's what the courts-martial process is for. Second, is "humiliation" an objective, cross-cultural standard? We're talking here about religious fanatics who take offense at the drop of a hat.
Anyway, I don't pretend to have all the detailed answers, and unless you have read the draft revised Field Manual - which remains a non-public document - neither do you. But the issue should be what practices we allow, what we don't and whether the line we draw comports with standards of morally decent behavior. That can and should be done without linkage to the treatment of lawful combatants, without binding ourselves to one-way treaties that our enemies use only as a shield, and without creating causes of action for unlawful combatants in US courts.
* - While I don't see particular reasons to disbelieve this story, the total reliance on unnamed sources discussing a non-public draft of a document means that we're all operating on speculation here, and should take the LAT's reporting with the usual grains of salt.