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.
Henke:
[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.
*People charged with crimes have certain rights, and we all benefit from protection of those rights. Lawful combatants who follow the rules of war have certain rights, and our soldiers benefit from from protection of those rights. Unlawful combatants have no rights we need respect, but we do nonetheless have moral responsibilities towards them by the nature of our own status as moral beings. We should have rules for their treatment, including probihitions on torture. But those rules should be determined bearing in mind the unique status of unlawful combatants, including the need to get information from them. If some level of “humiliation” is necessary to interrogate a particular unlawful-combatant detainee, we shouldn’t blanch at using it simply because it would be no way to treat a lawful-combatant POW or a criminal.
*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.
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.
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 JAGs came to the conclusion that this was the best they can get,” said one participant familiar with the Defense Department debate who spoke on condition of anonymity because of the protracted controversy. “But it was a massive mistake to have withdrawn from Geneva. By backing away, you weaken the proposition that this is the baseline provision that is binding to all nations.”
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.
In his February 2002 order, Bush wrote that he determined that “Common Article 3 of Geneva does not apply to either Al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and Common Article 3 applies only to ‘armed conflict not of an international character.’ “
Some legal scholars say Bush’s interpretation is far too narrow. Article 3 was intended to apply to all wars as a sort of minimum set of standards, and that is how Geneva is customarily interpreted, they say.
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.
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.
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.
Jeff Goldstein and James Joyner have more.
* – 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.