Geneva Contention
The Wall Street Journal:
The media are concentrating on the politics of the intra-Republican fight over military tribunals and detainee treatment, which last week saw the Senate Armed Services Committee move a bill substantially different from what the White House wants. But the stakes here are far more serious: To wit, if Senators John McCain, John Warner, Lindsey Graham and Susan Collins get their way, aggressive interrogation as an antiterror intelligence tool will effectively end.
Thanks to last year’s McCain Amendment, the Defense Department is already required to give detainees in its custody better treatment than American police must give common criminals. The new Army Field Manual doesn’t even allow for good cop/bad cop routines against Iraqi and Afghan insurgents if threats of any kind are conveyed or implied. This restraint is not required by the Geneva Conventions, which clearly distinguish between lawful and unlawful combatants — the latter being deemed to have fewer rights because they have violated the rules of war by fighting out of uniform or targeting civilians.
Now the four GOP Senators and most Democrats are working to put CIA interrogators under similarly restrictive rules. If they get their way, they will make it impossible for any government agency to squeeze the next al Qaeda terrorist who may have information about a ticking bomb in an American city.
At issue now is something called Common Article 3 of the Geneva Conventions, which the Supreme Court ruled this summer in Hamdan v. Rumsfeld applies to our conflict with al Qaeda. This was a dreadful decision, since Article 3 is intended to be applied to an “armed conflict not of an international character” — i.e., a civil war. But it is now the law, and the question going forward is how to interpret Article 3′s ambiguous prohibition against “outrages upon personal dignity, in particular humiliating and degrading treatment.”
That clause can mean just about anything depending on the eye of the beholder. To pick one example, U.S. human rights groups have alleged that using women to question Islamist prisoners is “humiliating and degrading.” But for the U.S. to bar women interrogators might well violate our own civil rights laws. What’s more, the definition of an “outrage” is context-dependent. What’s outrageous when dealing with the likes of 9/11 mastermind Khalid Sheikh Mohammed, or a terrorist who might know about imminent plots, is clearly different than what’s outrageous when dealing with a lawful combatant or prisoner of war.
The Bush Administration has proposed to deal with this ambiguity by laying down a clear set of rules specifying conduct it considers acceptable and unacceptable under Article 3. We think it is perfectly legitimate to interpret Article 3, as the Administration does, in a way that permits aggressive interrogation of some detainees. Some people may disagree. But it is wrong to assert that merely attempting to interpret “outrageous,” “humiliating” and “degrading” is to somehow rewrite the Geneva Conventions, as the critics charge.
Read the whole thing.
I think the Bush administration’s desire to define what is “outrageous,” “humiliating” and/or “degrading” under Article III of the Geneva Conventions just makes sense. Unfortunately, some in Congress like John McCain oppose any effort to define those terms for our troops:
…I oppose unilaterally reinterpreting in law Geneva Common Article 3. Weakening the Geneva protections is not only unnecessary, but would set an example to other countries, with less respect for basic human rights, that they could issue their own legislative “reinterpretations.” This puts our military personnel and others directly at risk in this and future wars.
“Our CIA interrogators are on the front lines of this conflict, and I respect their service. There is nothing in our bill that would require the closure of the CIA’s detainee program. Our legislation protects them from unfair exposure to criminal and civil liability. And it maintains intact international obligations that protect their rights. To do any less risks our reputation, our moral standing and the lives of those Americans who risk everything to defend our country.”
McCain’s stance on this matter would leave the definition of “outrageous,” etc. treatment of detainees up to the U.S. Justice Department. Now tell me, what is the better approach to this situation? Should we have an open Congressional debate about what does and does not violate Article III and then codify the results of that debate in the law for our troops and everyone else in the world to see or should we leave defining Article III up to the Justice Department which will likely define said terms in secret memos? Something that would leave our military open to more blustering, over zealous partisan attacks from the like of Dick “Gitmo Is A Gulag” Durbin?
I’m surprised by the number of Democrats who are lining up against the President on this issue. A routine criticism of the President from the left focuses on the Bush administration’s lack of transparency and accountability. Well, what is more transparent than solid, well-defined list of what our CIA agents can and cannot do while interrogating the enemies of this country?
This is no time for ambiguity and inaction in the war on terror. Congress has dragged its feet for years in giving approval for a tribunal system for war on terror tribunals, now they’re balking at giving our CIA agents well-defined rules for interrogations.
Many complain about the President’s “power grab” in relation to the war on terror, but I think it has become clear in recent months that if the war on terror had been left up to Congress we wouldn’t have seen near the progress we have.
