Pentagon Strikes Humane Treatment from Field Manual
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.
“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 Bush’s order superseded military policy at the time, touching off a wide debate over U.S. obligations under the Geneva accord, a debate that intensified after reports of detainee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.
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.
At some point we’re going to recognize that they’re going to be angry at us, no matter WHAT we do… and simply go about what needs doing, regardless of the complaints.
Yes, the ends justify the means.
I weep for what used to be our nation.
Issue a 1000 page FM about treatment deemed ‘appropriate’ by Muslim cultures. It ought to cover things like not arresting suspects, not returning fire on combatants in civilian clothes, refusing lawful orders that might make you an infidel invader, etc.
In fighting a war of ideologies and world views we only lose when we surrender the beliefs we have fought and died for in the past. What good is the world to a nation who has lost it’s soul?
Well paper-grading Jeff Goldstein is certainly making quite the rounds with his snide witicisms at the expense of our troops. I just found a post of his where he’s trashing our troops – calling them nothing but desperate folks in the shades of Mexican, black and pasty white trailor trash.
No wonder chicken hawks like him don’t mind our troops staying the course or being subjected to the lack of protection non-adherence to the Geneva Convention entails.
While the snark at the end about Sullivan and Zarqawi is clever, it belittles a genuine concern that I don’t think is very partisan at all. Do actions that we would condemn when practiced by our enemies suddenly become defensible when practiced by us?
This is a problem with a lot of the defenses of this administration’s actions during the “War on Terror”: they’re essentially predicated on the contention that any law or regulation which makes the prosecution of the war less efficient is a law or regulation that the government should be made exempt from. Perhaps only for the duration of the war, but what exactly are the victory conditions for a war on a methodology? Are you comfortable giving your government such broad powers for decades, regardless of who holds the office?
How dare you offend al-Zarquawi like that (/sarcasm)
Watts: If you read the post, you’ll see that I agree with Sullivan on the policy. That his statement on the matter reads like a press release from al Qaeda is rather proof of my thesis: this will be used against us. Still, I find his tone rather breathless.
thanks for the link.
It think it important to point out, as one of my commenters did, that, in his words, “the Senate specifically adopted a definition of torture consistent with the changes being made to the Field Manual now.”
So as my commenter notes, “itÃ¢ï¿½ï¿½s far from clear that weÃ¢ï¿½ï¿½re not following Article 3 [both relative to Bush’s 2002 revision for the current enemy and to Congress’s adoption of a torture definition that takes into account the very disinctions I make in my post – JG]. Moreover, the reason GC elsewhere requires uniforms, etc. for POW status is to encourage parties to sign onto the agreement. JoynerÃ¢ï¿½ï¿½s position provides no incentive for our enemies to behave in a more civilized manner. I donÃ¢ï¿½ï¿½t expect they would anyway, but one would think that our alliesÃ¢ï¿½ï¿½and Sullivan and JoynerÃ¢ï¿½ï¿½would recognize the principle in the first place. Oddly enough, I donÃ¢ï¿½ï¿½t think that those who believe the US is the Great Satan […] would have been swayed if the Field Manual remained unchanged.”
I guess it’s for this reason that I wrote that I’m willing to discuss just how we should incorporate the GC into our treatment of enemy combatants, but that I find “a counter argument might be made that the changes are unusually up front and conspicuous,” and speak to a kind of transparency that is quite a bit more honest than the PC veneer some folks seem to want.
Jeff: I agree if the prohibition were only on torture. But the clause in question also prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Stripping folks naked and having redneck women make fun of their dicks, to take one decidedly non-torture example, certainly seems to be degrading. (Now, being forced to have sex with Lynndie England would qualify as torture in my book.)
The Bush admin hands the terrorists another victory…
Too bad that Goldstein commented but didn’t bother to explain his comment about the “poor Mexicans, Blacks, or souther[n] white trailer trash” who are fighting and dying in the Iraq War for him.
No, Jeff. You’ve just missed the whole point of having a moral code. We don’t act in a certain way in order to get other people to act similarly. If they do, that’s great. But when you strip away everything else, we behave in a certain way because it’s the right thing to do. Anything else is simply Skinneresque conditioning – “act like we want you to and we’ll give you a treat.” That’s not a moral code, it’s moral surrender.
We shuoldn’t torture becaure torture is wrong, regardless of how our enemies act. Likewise, we shouldn’t humiliate prisoners because we signed a treaty in good faith, and keeping such agreements is supposed to be oine of our values. If enough people disagree, there’s ways to change or invalidate the treaty. But nobody, not even the President, gets to arbitrarily pick and choose which parts to ignore.
Sorry, Legion, but thinking like that isn’t acceptable in America any more.
Find some other country to live in if you want to be “moral” in some sense that doesn’t involve getting back at people who have more sex than you do.
We didn’t gas prisoners in WWII because the Nazi’s did. We didn’t run medical experiments in torture or human breeding just because the Nazis did. We fought for something noble WITHOUT rushing to be as evil as the Nazis. Apart from the fact that torture doesn’t work, it’s immoral and un-American. We need to have our government define our highest goals, especially in wartime; and we need to be the best country possible–not just the best country there is.
James – I got to tell you, it’s so great to hear that from a conservative. I’d swear I’d hug you if I could….’cept we’re on opposite sides of the internet…..and we’re both men….
Give me 3 minutes with Jeff’s wife, a Polaroid camera, and a waterboard and I’m sure I’ll have whiney Jeff sucking my Mamas cock to sign on to the Geneva Convention.
Dumbfuck Jeff knows dick about torture – as do most of you.
Fuck that…gimme 1 minute with Jeff’s daughter and a Polaroid camera and I’ll have him signing on to the Geneva Convention
For Strake and Anderson re Goldstein’s remarks on Mexican, Blacks, and white trailer trash. You didn’t recognize that as sarcasm and satire? Reading comprehension-practice it. This is the
type of article that Jeff was lampooning.
I was raised in rural Wisconsin and now live in rural Washington. There are a lot of kids in these areas that are joining the military and it’s not for lack of jobs. It’s because of values held and patriotism. So the WaPo can cram their condescending BS where the sun don’t shine.
Legion, I think you missed the whole point which is to provide incentives for warring factions to distinguish themselves from the civilian population. This might, you know, reduce civilian casualties.
So many shedding tears about our fallen state, morally bankrupt troops, evil leader. Go ahead and whine about training manuals. Anybody know anything about them or how the military uses them? Maybe a few.
Why totally avoid the issue of what constitutes ‘toture’? The reason the manual is being revised is:
New war, new tactics, new manual. Nowhere has anybody advocated ‘torture’. Save your tears for the result of your media war against America.
LJD: Yes, I know what Field Manuals are used for. They’re the basis of Army training and doctrine. If it’s not in the FMs, it’s not going to be trained.
The McCain Amendment does not supercede United States treaty obligations. Treaties, which require 2/3 Senate ratification, stand above statute in the hierarchy of our laws.
What I find interesting is how obsessed Cheney/Rumsfeld is with sex, how much of the torture on detainees involves sexual humiliation and forced homoeroticism. It’s pretty twisted. I wonder how much of any of this has to do with a ‘war on terror’ and how much with some people just having it off.
FMs are a foundation. Wars are won on campaign/theatre sepcific training.
BTW, my previous comment was not directed at you, rather those who would scream about torture as a matter of policy. It has yet to be shown.
I would not say that the amendment supercedes the treaty either, only that the item in question is the application of the GC. Does it apply, or doesn’t it?
The Pentagon’s concerns are probably valid. In this GWOT, with this administration, a ‘detainee’ could make specious complaints (Koran flushing) and the media will eat it up. Doesn’t matter if it’s true or not. What level of ‘discomfort’ (way short of torture BTW) are we willing to accept?
Drindl- what planet do you live on?
I agree that encouraging distinctions is the original intent, but the Jeff seems to go off on some tangent about more general behavior that the GC isn’t really the tool for.
And I love the people on the right who conveniently forget that the prohibition against “humiliation and degradation” is specifically written into the treaty we signed, and therefore federal law. But rather than take the appropriate actions to get the law changed, they’d rather insult and criticise the people pointing out that the law is, in fact, being broken by policy.
Doesn’t the LA Times article only mention that the change is in DoD Directive 2310.01? I don’t see any reference to the removal of Article 3 from the AFM at all. I’m also assuming that it pertains to FM 34-52. If you read closely, the only changes are in the Directive. Is that part of the FM or not?
You misrepresent what is going on, hopefully from simply not having been directly exposed to it.
Much that is not in FMs is trained. The FM is the *beginning* of doctrine (or it is supposed to be–teh McCain Amendment made the FM on Interrogation into dogma). Doctrine also encompasess, and is modified by, Tactics, Techniques and Procedures, and Lessons Learned, two areas that the Army in particular has only made significant strides to capture and codify in the past decade.
The FM gives the “shoolhouse” answers. The Commander and the Soldier decide which parts work and which parts don’t.
The Russians for years accused us of writing the best doctrine that we didn’t use.
General training on the Law of Land Warfare will not be changed one iota by changing the FM on Interrogation. There is also a separate FM on the Laws of Land Warfare as well as supporting Army Regulations. None of these, to my knowledge, are being changed.
The changes proposed represnet, at worst, a genuine and honest, different interpretation of the signed treaties of the United States. Not a contravention.
In accordance with the Geneva Convention all that has to happen, all that has had to happen, is for one of the High Contracting Parties to articulate, formally, a difference of opinion on the treatment of detainees which makes it a matter for a tribunal to determine.
No challenge,as is presently the case and has been, seems to me to be a tacit approval, or at least acceptance, by the world community.
Actually, legion, they’re questioning the applicability of the treaty to the present situation, and also wondering what sort of “humiliation and degradation” rises to the level of “outrages upon personal dignity”, and/or the other prohibitions in Article 3, Section 1.
Of course, it’s hardly surprising to see you and your ideological fellow-travellers automatically impute bad faith to “people on the right”. Projection, is what I believe it’s called.
The torture ban has nothing whatsoever to do with ‘moral authority’, ‘sustaining support at home’, ‘building coalitions’ – and for Christ’s sake, it is ten billion miles away from having anything to do with ‘winning hearts and minds’. (In fact, in many cases rank and file Iraqis are much more bloodthirsty in their attitudes about insurgents than we could ever pretend to be, and chopping them into hamburger in a public square would probably win us a few new fans.)
The point of the Geneva Conventions against torture is this and ONLY this: we don’t do it to you, you don’t do it to us. If you support torture of America’s captives, you support torture of Americans. End of discussion.
“Whatever” almost found an intelligent point, but it escaped him:
The point of the Geneva Conventions against torture is this and ONLY this: we donÃ¢ï¿½ï¿½t do it to you, you donÃ¢ï¿½ï¿½t do it to us. If you support torture of AmericaÃ¢ï¿½ï¿½s captives, you support torture of Americans. End of discussion.
The point is, things like the Geneva Conventions can only apply to those who also follow them, or else they don’t work. (That would be the “we don’t do it to you, you don’t do it to us.) If you give the GC protections to enemies who don’t reciprocate, then you take away people’s incentive to reciprocate.
It is those who favor giving Geneva Convention protections to terrorists who are supporting the torture of Americans, because the terrorists are torturing Americans, and will continue to torture them. And giving them GC protections takes away any incentive they might have to stop.