Barry Schier
2006-06-06 02:12:43 UTC
{Preface}
The opponents of the Cuban Revolution, cued by Washinvgton, have
repeatedly claimed that torture takes place in Cuba. Indeed, torture
takes place in Cuba -- in Washington's military enclave of Guantanamo
Bay, which the U..S.A. stole from the Cuban people.
Technically speaking, the U.S.A. has never formally annexed Guantamemo
Bay, but occupies it under terms of a perpetual "lease." The
revolutinary Cuban government has torn up the check received annually
from Washington, not because (despite a couple of increases from the
original token "rental" payment) the annual payment is insufficient to
pay for rental of an average Los Angeles apartment for 10 weeks, but
because of the principle involved -- i.e., Cuba's dignity and
sovereignty are not to be negotiated, rented nor sold at ANY price.
There has been some (or, arguably, much) debate and criticism of this
"move to omit a ban on prisoner humiliation from the basic guide to
soldier conduct ..." from both many members of the Democrats (i.e., the
rival party to President Bush's Republican Party) and from agencies and
members of the government itself, about whether to continue to include
lip service about prohibiting torture in the military manauls. However,
NEARLY ALL of this criticism opposes torture NOT on principle, but as a
as part of a "defense debate" on whether practice will cause increased
resentment of the U.S. government, i.e., (in the words of the
concluding sentence of the article) "The overall thinking ... is that
they need the flexibility to apply cruel techniques if military
necessity requires "
-- Barry Schier
{Article}
Army Manual to Skip Geneva Detainee Rule
The Pentagon's move to omit a ban on prisoner humiliation from the
basic guide to soldier conduct faces strong State Dept. opposition.
By Julian E. Barnes, [Los Angeles] Times Staff Writer
June 5, 2006
WASHINGTON - 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.
ADVERTISEMENTFor more than a year, the Pentagon has been redrawing its
policies on detainees, and intends to issue a new Army Field Manual on
interrogation, which, along with accompanying directives, represents
core instructions to U.S. soldiers worldwide.
The process has been beset by debate and controversy, and the decision
to omit Geneva protections from a principal directive comes at a time
of growing worldwide criticism of U.S. detention practices and the
conduct of American forces in Iraq.
The directive on interrogation, a senior defense official said, is
being rewritten to create safeguards so that all detainees are treated
humanely but can still be questioned effectively.
President Bush's critics and supporters have debated whether it is
possible to prove a direct link between administration declarations
that it will not be bound by Geneva and events such as the abuses at
Abu Ghraib or the killings of Iraqi civilians last year in Haditha,
allegedly by Marines.
But the exclusion of the Geneva provisions may make it more difficult
for the administration to portray such incidents as aberrations. And it
undercuts contentions that U.S. forces follow the strictest, most
broadly accepted standards when fighting wars.
"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.
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.
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."
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.
Army Manual to Skip Geneva Detainee Rule
The Pentagon's move to omit a ban on prisoner humiliation from the
basic guide to soldier conduct faces strong State Dept. opposition.
By Julian E. Barnes, Times Staff Writer
June 5, 2006
WASHINGTON - 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.
ADVERTISEMENTFor more than a year, the Pentagon has been redrawing its
policies on detainees, and intends to issue a new Army Field Manual on
interrogation, which, along with accompanying directives, represents
core instructions to U.S. soldiers worldwide.
The process has been beset by debate and controversy, and the decision
to omit Geneva protections from a principal directive comes at a time
of growing worldwide criticism of U.S. detention practices and the
conduct of American forces in Iraq.
The directive on interrogation, a senior defense official said, is
being rewritten to create safeguards so that all detainees are treated
humanely but can still be questioned effectively.
President Bush's critics and supporters have debated whether it is
possible to prove a direct link between administration declarations
that it will not be bound by Geneva and events such as the abuses at
Abu Ghraib or the killings of Iraqi civilians last year in Haditha,
allegedly by Marines.
But the exclusion of the Geneva provisions may make it more difficult
for the administration to portray such incidents as aberrations. And it
undercuts contentions that U.S. forces follow the strictest, most
broadly accepted standards when fighting wars.
"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.
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.
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."
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.
....Page 2 of 2 << back 1 2
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."
ADVERTISEMENTAnother 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."
Jinks, of the University of Texas, contends that Article 3 does not
prohibit some of the things the military says it wants to do. "If the
practice is humane, there is nothing to worry about," he said.
Defense officials said the State Department and other agencies had
argued that adopting Article 3 would put the U.S. government on more
solid "moral footing," and make U.S. policies easier to defend abroad.
Some State Department officials have told the Pentagon that
incorporating Geneva into the new directive would show American allies
that the American military is following "common standards" rather than
making up its own rules. Department officials declined to comment for
this article about the directive or their discussions with the
Pentagon.
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.
But top administration officials contend that after the Sept. 11
attacks, old customs do not apply, especially to a fight against
terrorists or insurgents who never play by the rules.
"The overall thinking," said the participant familiar with the defense
debate, "is that they need the flexibility to apply cruel techniques if
military necessity requires it."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The opponents of the Cuban Revolution, cued by Washinvgton, have
repeatedly claimed that torture takes place in Cuba. Indeed, torture
takes place in Cuba -- in Washington's military enclave of Guantanamo
Bay, which the U..S.A. stole from the Cuban people.
Technically speaking, the U.S.A. has never formally annexed Guantamemo
Bay, but occupies it under terms of a perpetual "lease." The
revolutinary Cuban government has torn up the check received annually
from Washington, not because (despite a couple of increases from the
original token "rental" payment) the annual payment is insufficient to
pay for rental of an average Los Angeles apartment for 10 weeks, but
because of the principle involved -- i.e., Cuba's dignity and
sovereignty are not to be negotiated, rented nor sold at ANY price.
There has been some (or, arguably, much) debate and criticism of this
"move to omit a ban on prisoner humiliation from the basic guide to
soldier conduct ..." from both many members of the Democrats (i.e., the
rival party to President Bush's Republican Party) and from agencies and
members of the government itself, about whether to continue to include
lip service about prohibiting torture in the military manauls. However,
NEARLY ALL of this criticism opposes torture NOT on principle, but as a
as part of a "defense debate" on whether practice will cause increased
resentment of the U.S. government, i.e., (in the words of the
concluding sentence of the article) "The overall thinking ... is that
they need the flexibility to apply cruel techniques if military
necessity requires "
-- Barry Schier
{Article}
Army Manual to Skip Geneva Detainee Rule
The Pentagon's move to omit a ban on prisoner humiliation from the
basic guide to soldier conduct faces strong State Dept. opposition.
By Julian E. Barnes, [Los Angeles] Times Staff Writer
June 5, 2006
WASHINGTON - 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.
ADVERTISEMENTFor more than a year, the Pentagon has been redrawing its
policies on detainees, and intends to issue a new Army Field Manual on
interrogation, which, along with accompanying directives, represents
core instructions to U.S. soldiers worldwide.
The process has been beset by debate and controversy, and the decision
to omit Geneva protections from a principal directive comes at a time
of growing worldwide criticism of U.S. detention practices and the
conduct of American forces in Iraq.
The directive on interrogation, a senior defense official said, is
being rewritten to create safeguards so that all detainees are treated
humanely but can still be questioned effectively.
President Bush's critics and supporters have debated whether it is
possible to prove a direct link between administration declarations
that it will not be bound by Geneva and events such as the abuses at
Abu Ghraib or the killings of Iraqi civilians last year in Haditha,
allegedly by Marines.
But the exclusion of the Geneva provisions may make it more difficult
for the administration to portray such incidents as aberrations. And it
undercuts contentions that U.S. forces follow the strictest, most
broadly accepted standards when fighting wars.
"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.
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.
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."
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.
Army Manual to Skip Geneva Detainee Rule
The Pentagon's move to omit a ban on prisoner humiliation from the
basic guide to soldier conduct faces strong State Dept. opposition.
By Julian E. Barnes, Times Staff Writer
June 5, 2006
WASHINGTON - 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.
ADVERTISEMENTFor more than a year, the Pentagon has been redrawing its
policies on detainees, and intends to issue a new Army Field Manual on
interrogation, which, along with accompanying directives, represents
core instructions to U.S. soldiers worldwide.
The process has been beset by debate and controversy, and the decision
to omit Geneva protections from a principal directive comes at a time
of growing worldwide criticism of U.S. detention practices and the
conduct of American forces in Iraq.
The directive on interrogation, a senior defense official said, is
being rewritten to create safeguards so that all detainees are treated
humanely but can still be questioned effectively.
President Bush's critics and supporters have debated whether it is
possible to prove a direct link between administration declarations
that it will not be bound by Geneva and events such as the abuses at
Abu Ghraib or the killings of Iraqi civilians last year in Haditha,
allegedly by Marines.
But the exclusion of the Geneva provisions may make it more difficult
for the administration to portray such incidents as aberrations. And it
undercuts contentions that U.S. forces follow the strictest, most
broadly accepted standards when fighting wars.
"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.
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.
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."
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.
....Page 2 of 2 << back 1 2
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."
ADVERTISEMENTAnother 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."
Jinks, of the University of Texas, contends that Article 3 does not
prohibit some of the things the military says it wants to do. "If the
practice is humane, there is nothing to worry about," he said.
Defense officials said the State Department and other agencies had
argued that adopting Article 3 would put the U.S. government on more
solid "moral footing," and make U.S. policies easier to defend abroad.
Some State Department officials have told the Pentagon that
incorporating Geneva into the new directive would show American allies
that the American military is following "common standards" rather than
making up its own rules. Department officials declined to comment for
this article about the directive or their discussions with the
Pentagon.
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.
But top administration officials contend that after the Sept. 11
attacks, old customs do not apply, especially to a fight against
terrorists or insurgents who never play by the rules.
"The overall thinking," said the participant familiar with the defense
debate, "is that they need the flexibility to apply cruel techniques if
military necessity requires it."
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