COUNTERING MILITARY RECRUITMENT
Articles: Military Service: General
Army Manual to Skip Geneva Detainee Rule
Julian E. Barnes, Los Angeles Times
June 4, 2006
The Pentagon's move to omit a ban on prisoner humiliation from thebasic guide to soldier conduct faces strong State Deptartment
opposition.
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 culminates 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.
For 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.
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 organizations 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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