Centerfield

I have a great deal of inclination toward the argument that we should treat the captives humanely because of own morals and values. I have little inclination toward the argument that Secretary Powell is making. No enemy we have ever faced in a war has adhered to the full provisions of the Geneva Convention when it comes to their treatment of our prisoners. The Germans probably came closer than anybody else, but that's about it. The terrorists aren't even signatories to the Geneva Conventions, and they sure don't adhere to anything close to its requirements.

Besides which, only one small section of the G.C., article 3, has any possible application to the Al Qaeda operatives picked up on the battlefield. The Geneva Conventions very intentionally left out non-uniformed, illegal combatants from its protections. Our treatment of them is legally irrelevant. We have and continue to adhere scrupulously to the Geneva Convention requirements where they actually apply. The "original intent" of the G.C. was that combatants like Al Qaeda are not entitled to any of the Convention's protections because they do not fight according to the laws of war, which require, among many other things, wearing uniforms, obeying a central command, and not hiding and fighting among civilians, and most especially not intentionally targetting civilians.

The issue over the efficacy of some of our more aggressive interrogation techniques is a different question, and I do defer substantially to Sen. McCain's opinions on that subject. But we still must be careful with our use of language and distinguish between the willful and indiscriminate application of extreme pain and mental duress (real torture, the kind inflicted upon Sen. McCain) and harsh and aggressive interrogation tactics such as waterboarding (which we do to our own troops as part of their training to prepare in case they are ever captured).

If we re-interpret or modify the intent of the Geneva Conventions agreement why wouldn't our enemies do the same?

Our current enemies don't follow the Geneva Conventions in the first place, Mathew. Your use of the word "intent" is problematical, and renders the question meaningless. "Intent" is entirely subjective.

Furthermore, what does interpreting or modifying the Geneva agreement allow the United States to do and why specifically do we need to do it?

It is completely impossible adhere to the GC's without interpreting them. We are NOT "modifying" them in any fashion--that would take a new treaty. The application of treaties in domestic law requires statutory interpretation, and the parts of the GC they're trying to fit the statutes to are very vague.

The Bush admin would apply the McCain-written definition in the 2005 Detainee Treatment Act as a legal shield for those who stay within those defined limits. What was once good enough for McCain (and is now enshrined in US Code) is apparently not now good enough for McCain, and he wants to re-define those limits again.

There's more going on here than meets the eye. The President's preferred bill is S.3614. The McCain bill text (almost three times as long, whatever that's worth) can be found here. Someone with more time can try to spot the major differences.

What the argument boils down to is different definitions of "torture." We've discussed that here extensively--that huge grey area between what is most certainly prohibited torture, and at the other end the GC limits for POW's, which are considerably more restrictive than the (quite legal) interrogation methods available to your local police department. They're apparently still arguing over where in that big grey area to draw the legal lines for "unlawful combatants."

Mathew,

I don't know if I understand what you're asking, and there's a lot of hyperbole being thrown out here-- for starters, there's lots of "military leaders" who want to throw out the Geneva Convention book in the GWOT, not just "those who have never spent a day in uniform"-- and I'll talk about those military leaders in a moment (though I won't refer to any by name out of respect for their privacy). Part of the reason that you're probably not aware of this internal conflict is that the military-- unlike State or the CIA, for example-- prefer to fight our battles privately, and not to undermine the civilian leadership by leaking to the press when things don't go our way. But then, the military has always been the government's most professional bureaucracy by far, the others just don't want to believe that. I'm just bringing that up because it bugs me when people try to cast this as "those who know oppose it" and "those who don't know support it" when the truth is always far more nuanced than that-- there are "those who know who oppose it" and there are "those who know who support it," just as there are "those who don't know who support it" and "those who don't know who oppose it." (And "it" refers to re-interpreting the Geneva Convention protections).

All that said, it's important to note that, at least as we studied military ethics at West Point, Geneva Convention protections have never morally applied to illegal combatants-- that is (at least historically) combatants who were captured out of uniform were generally shot on sight, many after being beaten and tortured, and Geneva didn't prohibit that (perhaps because it wants to encourage "legitimate"-- which is to say, Western-style-- warfare, and one such way is to penalize illegal combatants). Geneva Convention protections only extended to lawful combatants-- soldiers, wearing a clearly recognizable uniform, in service to their state. Strictly speaking, the detainees have almost universally been illegal combatants. Now I believe the Supreme Court has recently held that the Geneva Conventions do apply to the detainees at Guantanamo and elsewhere (maybe Pat or Simon can comment on that) and, if so, that would be the law of the land (perhaps prompting the Administation's desire to re-write the law), but prior to that ruling, looking strictly at academic jus en bello theory, it wasn't the case.

But it was always based on reciprocity-- if either state violated Just War protections of the other side, then their claim to such protections for their own people was always considered invalid, and generally transformed the viciousness of the conflict. I mention this because when you ask, "If we re-interpret or modify the intent of the Geneva Conventions agreement why wouldn't our enemies do the same?" I think it's important to remember that our enemies (at least the ones we're fighting in Iraq, Afghanistan, the Horn of Africa, the Philippines, and elsewhere) DON'T honor Geneva Convention agreements-- a Soldier captured by the jihadists will almost invariably turn up dead, usually executed in a very brutal manner, and after having been subjected to humiliating torture (far worse than anything our side might have been done) that is generally broadcast and disseminated to the world (itself a violation). This is where many of the military leaders who support the Geneva re-interpretation come in-- not only do they believe the jihadists have forefeited the right to GC protections because they are illegal combatants, even if they donned uniforms and became legal combatants, they still wouldn't be entitled to the protections because they're not honoring reciprocity. I should note here that I don't necessarily agree with them-- I think that even if the jihadists are not morally entitled to GC protections, we need to provide it to them anyway because of the importance of winning the battle of perception (both at home, in Iraq, and abroad), which is what Colin Powell (who I don't always agree with) refers to in the discussion you cite. But I do want to represent their positions accurately (or as accurately as I can) since you're asking someone to help you out in understanding them, and I know they won't stop by here themselves.

I do think there's a slippery-slope argument when people say that if we throw out the GC protections book on the jihadists that future conflicts with other countries will also throw out the protections as well. This neglects years of military history experience, including many in the same conflict, where enemies have demonstrated that they don't follow some blind dictate, but rather reach an understanding about who they're fighting and modify their behavior accordingly. For example, in World War II, Americans and Germans were relatively civil to one another in battle and in captivity; by contrast, the American/Japanese theater was marked with horrific brutality and tortures and that was surpassed only by the German/Russian front, where the brutality reached epic proportions (for 20th century Europeans, mind you-- they had nothing on, say, the Aztecs who were eating their captives, or even modern day African rebels who chop off the arms of captives and civilians because they think it's funny). This disparity occurred because of the principle of reciprocity-- Americans and Germans believed that the other side would respect their prisoners, and so they treated their own prisoners with relative respect; by contrast, Americans and Japanese were convinced that torture would be the norm in their conflict, as did Germans and Russians in theirs. If either side in either conflict had behaved otherwise (i.e., if Americans started rounding up German prisoners and turning them into human decorations, a la Pol Pot in Cambodia), you can rest assured that the civility would have collapsed as reciprocity would have been violated. Thus if we ever did go to war with, say, Finland or Mongolia, the Geneva Conventions wouldn't necessarily be "thrown out" just because we may decide to not to grant them to the jihadists or even to Singapore or Canada.

There seem to be two principle threads to the arguments for/against torture: the moral one, and the practical.

The moral argument, from what I have read so far, seems to be between positions that say, approximately, "torture is immoral, and so we should not do it" and positions which say, also approximately, "our opponents practice torture, so it's OK for us to do so, too."

The practical argument, similarly, seems to be between positions of "we need the information that we believe these people have, and they won't give it up any other way," vs. "the information is unreliable, because someone being tortured will say anything he thinks his tortures want to hear in order to get them to stop."

On the moral issue, everybody will have to make up their own mind. (Personally, I can't see much merit in contending that my behavior need be no better than the worst of my opponents -- that's vengence, not morality. But that may be just me.)

On the practical issue, the evidence I have seen uniformly supports the unreliability position. Anyone who has specific cases to the contrary will doubtless present them in response.

While I was typing, Bobby was making a third argument: that by torturing we are harming our own cause by losing the battle of perceptions. If there is a counter argument, other than "we don't have to care what anybody else thinks," I'm not sure what it would be.

Unless we close the country, physically as well as economically, to the rest of the world, I think we have to care to some degree. And since, except when we are shooting ourselves in the foot, we have tended to win the perception battle, paying that economic price seems undesirable.

Mathew,

I agree, in general, that we should treat the combatants we have captured humanely and in accordance with the same sort of standards we would want our people to be treated with if captured. Not only is it moraly right...but in practical terms I think the public harm done to our reputation far outweighs any potential intelligence benefits we might get by using such methods. There was a reason in WWII why German soldiers were far more willing to fight to the death against Soviet troops then they were against the Western Allies.... and it speaks directly to what they percieved thier fate might be if captured.

However any arguements that are based upon the Geneva Conventions, IMO, is bogus. If you actualy bother to read the Convention, it is fairly explicit about who it is intended to apply to and who it is not. In order to fall under the protection of the Convention, a combatant must either be fighting for a signatory.... or if not fighting for a signatory must be a member of an organization which generaly abides by the Rules of the Convention itself. Al Queyda (and the insurgents in Iraq) fail miserably on both those counts. So according to a strict reading of the Rules of the Convention... it is pretty clear that such combatants are not entitled to it's protections. I think a fair reading of the Convention says that individuals are entitled to a hearing before a regularly constituted millitary tribunal to determine if they have been correctly identified as insurgents or members of Al Queyda..... but for those that are, there is little doubt that legaly they are not entitled to claim protection under the terms of the Convention.

One very pertinant point about insurgents...and the Convention does make certain provisions for insurgent combatants, is that in order to qualify for it's protections such a combatant must 1) Carry thier arms OPENLY and .... 2) Must wear a distinctive badge or insignia, recognizable at a distance, in order that you not be confused for a civilian non-combatant. You don't get to use the civilan populace as cover and still qualify for protection of the Convention. If you are a combatant who is trying to hide as a non-combatant..... you would be considered a SPY and under the accepted customs of warfare subject to summary execution.

Note, I don't advocate we execute captured insurgents and I think we should treat even those who don't qualify for the Protections of the Convention humanely. It benefits us to do so. But at the same time I think we should make it VERY CLEAR that insurgents are not legaly entitled to claim it's protections. Allowing them to do so, IMO, significantly WEAKENS the Convention... not strengthens it. Part of the importance of the Convention is that there are consequences for not abiding by it's Rules.....one of those consequences is that you don't get to turn around and claim it's protections for yourself.

The insurgents we are fighting are not soldiers.... they are muderous thugs and criminals who respect no rules of war... they should not be afforded the same honours as soldiers..... to do so would be to dishonor all men and women of all countries (friend and foe) who serve in uniform and who do respect the rules of war..... whatever we do, we need to be very explicitly clear about that.

Our current enemies don't follow the Geneva Conventions in the first place, Mathew. Your use of the word "intent" is problematical, and renders the question meaningless. "Intent" is entirely subjective.

So what, we should write policy positions based on our challenges only at the present time? Because that has worked so well for us in the past? I get it, they are really bad people. I don't see why that means we should abandon our values without understanding why. That is my point, neither side IMO, is walking on the straight and narrow with this one.

It is completely impossible adhere to the GC's without interpreting them.

Oh c'mon, that isn't neccesarily the case. So nobody has been adhering to them until now? And why some 50 years later is this debate taking place? Is that really our position, that the United States hasn't been able to adhere to the Geneva Conventions for half of a century? Did nobody at the time the conventions were agreed upon ask for better interpretation?

I'm skeptical of the word "interpret" to begin with. If that is really what is needed, why is the interpreting of conventions that were agreed upon by many countries up to one country. I guess it is an issue of trust. I don't like how this administration "interprets" many things, and I don't neccesarily want them "interpreting" something as important as this. Especially since those doing the "interpreting" haven't actually been in the situation where they have been required to consider the Geneva Conventions before taking action.

There's more going on here than meets the eye.

I think that is what is so confusing. There seems to be a lot of political posturing over not much. That been said it would seem to me that the two sides are McCain/Powell with most of the people responsible for implementing the conventions, and the administration who seems to be making mostly an ideological argument on how to treat terrorists without providing much substance as to why their way is the right way. I don't fully understand what McCain is doing either, but he has got a pretty good leg to stand on in the torture debate. It isn't as if he is doing this for political expediency. He is hurting himself in the Republican primary, if anything.

We've discussed that here extensively...

I understand that, but not to a satisfactory conclusion. I still think we are talking about more "you know it when you see it" than is suggested. The issue really has nothing to do with asking questions in a dimly lit room for a long period of time, does it? There is more to be concerned about here. Our nation's morale fiber is in question, and honestly I think it is for good reason. I doubt that would be the case if the issue was whether not prisoners could be treated in the same manner as they are at the local police precinct.

Bobby,

But then, the military has always been the government's most professional bureaucracy by far, the others just don't want to believe that.

That isn't saying much, but based on my professional experience with the military - not as a member - I would agree for the most part.

Part of the reason that you're probably not aware of this internal conflict is that the military-- unlike State or the CIA, for example-- prefer to fight our battles privately, and not to undermine the civilian leadership by leaking to the press when things don't go our way.

You are getting to my problem. I am in no way saying McCain/Powell are absolutely right and the administration is absolutely wrong, but those who would provide validity to their argument aren't doing the talking. Stephen Hadley is a smart guy, but compared to Powell and McCain he loses every time. This debate needs to happen in an honest and open manner and to this day it hasn't. There seems to be this air that the American people can't handle the details of combat policy, and as long as we are left out in the cold, people are going to take McCain/Powell at their word, hence the current polls showing 70% of the American people disagree with the administration's stance. Your comment is very thoughtful Bobby, and has helped me understand more about the debate; however, I am not sure there is a defined policy direction.

wj,

Exactly, provide me with the evidence... The administration hasn't. I don't get what specifically will be the positive result of their current actions and don't see much more in their argument other than ideological warfare about how we should treat the bad guys. The goal is to get the information. What is the best way to do that? And if torture isn't it, McCain/Powell should explain to us what is a better way.

Cengel,

Good points...

Mathew, the debate is over the specific intepretation of specifics parts of GC, which sounds quite high-minded but is indeed pretty damn vague when it comes to specifics, and "intent" is indeed such a subjective thing that it's utterly useless as an interpretive guideline. Most of those who wrote GC4 are dead of old age, long past. Whatcha gonna do? Hire a medium and hold seances to ascertain their "intent" at the time? See what I mean?

You ignore the core of my point--without interpreting both concretely and specifically by statute such phrases as "cruel treatment" and such, there are no lines at all in that vast grey area. None. Just subjective assessments. Is waving a burning cigarette in front of a deprived smoker "torture?" What about threatening to have his wife arrested and prosecuted as a co-conspirator, and his kids given away to foster homes? How about denying him commisary privileges if he won't talk? (All of those things are completely permissible to your local PD, but banned by the GC in interrogating POW's.)

McCain's own DTA 2005 was quite specific in its language.

No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation....No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment....the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

McCain got his own language. Now he wants to re-write and/or extend his own words. Why? What exactly is it that McCain thinks he missed doing on the first round, where he had his way entire, if apparently not complete? Why does he feel the need to re-write and re-interpret his own law?

It isn't as if he is doing this for political expediency.

LMAO. Puh-lease. ALL of them are doing this for political expediency to some degree or another. Good luck counting the degrees. The rest is all rhetoric and finger-pointing.

Mathew, the administration has provided evidence, as best it can be done without giving away information we should not give away to the enemy. The Bush Administration has stated very clearly that we have obtained actionable intelligence from people like Khalid Sheik Mohammed using these methods of interrogation, and information obtained through these methods from a number of detainees has resulted in the death or capture of other terrorists plotting against us.

You can, of course, choose to believe them or not, agree with the policy or not, but they have indeed made arguments in support of their actions beyond just "they're bad guys so we can be mean to them".

Bobby... we discussed Hamdan over at Stubborn Facts when it came out. The decision did not hold that the Al Qaeda detainees are prisoners of war under Article 4 of the Conventions. It held only that they were entitled to a set of very very basic and limited protections under Common Article 3 of the Conventions. The protections granted to Prisoners of War (as defined in Art. 4) under Article 12 et seq. are much broader and more extensive.

Text of Geneva Convention.

I do have some questions for some of our legal folks. Why would it even matter that we try to define the Geneva Convention? Would these definitions even have any kind of legal standing in a war crimes court[which, if I understand the whole point, is what the concern is]? Assuming a court would make its own judgement based on its own definitions, is this all much ado about nothing and only political grandstanding for the upcoming elections?

A few thoughts (great summaries of the issue -thanks):

The basic aim of the GC seems to have been the internationalizing of a mutual-agreed pathway for nations to deter each other from torturing or killing legal combatants and civilians. Those countries that violated the GC would lose their right for GC protection. Japan did not adhere to the GC and was subsequently hit twice by atomic bombs. Had Stalin had one, Berlin would have been French Toast. Dresden seems retribution for civilian targeting. The Jihadist does not follow the GC. They hide among civilians and they openly declare war on America, the West, Christianity, Israel etc. etc. etc. They slaughter civilians and behead captives. Bush appears to have been caught in the Post 9/11 millennium shift where the majority of foreign threats have become Jihadists that obey only their religious fanaticism.

While the moral ground seems the best guide for military and intelligence behavior, there is a huge hole in its application. The greatest good most Americans would probably agree on would be to save the lives of thousands of Americans (if not millions) and or their friends (here and abroad) and avert catastrophic economic disaster. A dirty bomb in NYC would achieve that. NATO was created to defend this common self-interest against another threatening hegemony. As terrorism evolves every day and deploys new instruments of increasing lethality, which threaten catastrophic destruction, the “exception” to the torture rule may become the rule. I believe this motivates the administration’s position. Perception should not be ignored as it effects strategic position and international cooperation. Still. I would approve a bit of torture if it meant saving a city or an estuary, though I agree, there must always be a strong penalty for torture left unjustified. McCain would have not fallen into the exception category in Viet Nam. He has said there are exceptions and perhaps criteria for such exceptions and a review system should be made more explicit. The problem internationally seems in part to be that what we call Jihadists, others call freedom fighters.

As it stands, I think Bobby, Pat and Tully are right. I do not think the originators of the GC sought to protect illegal combatants from interrogations designed to avert mass destruction or even a plot to assassinate a world leader. And the moral ground we erect over a mass of beheaded civilians and soldiers goes unheeded by the Jihadist as if to say, “screw your conventions, you are dogs and pigs not worthy of humane treatment”. While I hardly think it socially healthy to stoop as low as our adversaries do, treating them like real soldiers of legitimate governments with justifiable causes, seems wrong.

The deterrent quality of the GC and its exclusion for those who don’t adhere to it is also paralleled in our thinking about pre-emption. What are the criteria? If a terrorist is arming a nuke underground to be used to attack the US, can we use wmd (morally)to destroy the target? (Assuming we had some substantial evidence like the collaborated information from a terrorist interrogation) A better example would be a conflict with Iran. If the DOD thought Iran was arming drones with chemical or biological agents to use against US targets at the start of hostilities, do they “lose their right to the GC” and suffer retaliation of any kind?

On a separate note: Is there is a second issue here that seems to be about what “rights” a terrorist “suspect” has as opposed to a "proven guilty" one? Determining guilt is a separate matter, but assuming the evidence supports a person’s guilt, terrorists do not enjoy the rights of the GC. Personally, I wish I could feel comfortable with the “determination” part. It appears not to be as simple as shooting a weapon at US soldiers out of uniform. Didn't the court mean to address this issue? I think Americans do not support torturing a “suspect” without proving guilt or demonstrating why such a person deserves such extreme handling –at least to some judicial review. I think a mixture of all these issues in the public forum has muddied to waters.

I think McCain thinks he needs some grand standing. Maybe he's right.

Coming to this debate late, is it safe to say that while the Geneva Conventions clearly do not apply, we must adhere to customary rules of war in accordance with our values (meaning no torture, etc?) Failure to do so would compromise America's reputation, and moral authority, thus having long-term consequences. We ought to be able to use tough interrogation techniques, but ought not cross the line, because we are better than our enemies. That is certainly my view.

Part of what has made this country great is the idealism that underscores our prinicples and how we act accordingly. It gave us tremendous moral authority, especially post-WW2. Numerous stories of our treatment of POW's came back to Germany and Japan such that even decades later, an appreciation for what this country did still existed. It was a powerful message. Dealing with Russia and China would have been considerably more difficult had we not done so, after all it is hard to find allies when people hate you. I don't mean we're perfect, we'v e always been anything but. Yet we seem to do enough so that part of the strength that this country has have comes from the good will of those who believe in our dream. Destroy that dream, make us the equivalent of Saddam or any other despot, and we ultimately weaken this nation.

Is there is a second issue here that seems to be about what “rights” a terrorist “suspect” has as opposed to a "proven guilty" one?

Actually, part of the debate is over what rights a terror suspect/unlawful combatant has in front of a court, even a known guilty one. Some even claim that McCain's new language would extend ALL domestic criminal rights to terrorists being captured in the field--including Miranda warnings. Also on the block is restricting the use of evidence derived from classified reports and "forceful interrogations." Applying the criminal rules of evidence to battlefield captures of terrorists/unlawful combatants seems the height of idiocy to me, but that's being proposed, at least in part.

Treating terrorism as a law enforcement problem and terrorists as simple criminals is part of what led us to today. Extending that to foreign battlefields is a moron magnifier. As I've noted before, if the rules for dealing with field captures of terrorists are made too burdensome for our soldiers and too favorable for the terrorists, there won't be very many live terrorists brought in. The troops will simply kill them, rather than risk their own lives to capture them.

I don't think it's quite as simple as saying we're the good guys and they're the bad guys. First, we have always done stuff that is supposedly against our character--if you think we were always moral and above board during the Cold War, think again. It's the nature of international relations. I think it's a bit naive to hold ourselves to an unrealistic standard of behavior. By the same token, it's disingenous for us to hold ourselves out to the world as purer than driven snow. The rest of the world is quite aware that we are willing to do nasty things when necessary. They see a lot of our moralizing as hypocritical.

Second, I agree with comments that Powell's reasoning is silly. The people we fight don't respect the Geneva Convention anyway. Any American that is captured is in for a rough time regardless of how we treat prisoners.

Third, I'm not convinced torture is always immoral; like a lot of things it depends on context. Torturing a Japanese POW because you are mad about Pearl Harbor is clearly beyond the pale. On the other hand, if you captured a spy on December 5 and you were certain he had plans for an attack, then (aside from the question of efficacy), you could justify it. But, obviously, those kinds of clear-cut situations are rare at best. In other words, torture is acceptable--if at all--only where there is an imminent threat of harm to others if the information is not obtained. Conversely, treatment that might not rise to the level of "torture" could be unacceptable if it is done without any clear need. I am troubled by the apparent abuse (whether you call it torture or not) of prisoners by the US where it is not clear whether it is necessary. To some extent, however, it is all a matter of line drawing. Are you going to forbid ALL kinds of coercive interrogation? Under what circumstances do you allow it and how far?

But the Administration doesn't even seem to wrestle with these issues. To me, this is a political issue that the Administration has completely blundered. Its seeming indifference to the moral issues involved and its willingness to seek out legal opionions that would support its actions have placed the United States in a pretty untenable position. Few people around the world think of the US any longer as an explemplar of human rights. That is probably incorrect, but I think the way Bush has treated the torture issue contributes to the perception.

Yep. Define "torture." Then we get somewhere. Otherwise it's all smoke and mirrors and rhetoric.

As I said months ago, we should have strong laws that punish (specifically defined) torture by our troops and agencies. So those who feel that a situation absolutely requires such methods know that they should not make such a decision lightly, and should be willing to pay a very real price if they're wrong. Here is the line--do not cross it.

But what about when they're right, they make that decision, cross that line, and it produces a major savings in American lives? Sweep it under the rug? Allow the jury to hear that it was a success?

Not as simple as the posturing pols would make it out.

I'm a bit skeptical of Bobby's military credentials. I'm not sure what they teach at West Point but I can say in my 14 years (and counting) in the Army and having more 'Law of War' briefings and training than I can remember that that interpretation of the Geneva Conventions is just plain wrong and absolutly NOT what is taught to U.S. soldiers.

The Geneva Conventions do NOT require combatants to wear uniforms. There are special criteria to cover insurgents and combatants that are not part of a national military. They are treated somewhat differently but they are still afforded protections.

While reciprocity is one of the foundations of why the Geneva Conventions were written there's nothing in them that says 'If you don't play by the rules, we don't play by the rules'. As far as I know signatories are required to comply regardless of the actions of other combatants.

The real concern is that nations across the world will see us tinkering with the Conventions and then figure "What the heck...let's change our interpretation of them as well."

One of the reasons I serve in the military is because we hold ourselves to high standards and try to operate in ways that are consistant with our values. I also honestly believe that there's no reason we can't win a war - any war - while holding true to our principals.

When people raise this 'we should torture them' nonsense I always tell them "I'm a soldier, I don't rape women, I don't kill babies and I don't torture people. If you want someone who can fill that job description there's someone on trial in Baghdad who might be your kind of guy."

If you'll go to the text of the GC that I linked to above, you'll see that while there are some special rules on uniforms for members of a "resistance", those do not apply to insurgents like the al Qaeda members in Iraq. Except those resistance fighters, who still have an obligation to put on some kind of uniform as soon as possible, lawful combatants are indeed required to wear a uniform if they want to be entitled to the protections. Non-uniformed combatants are spies or terrorists, not soldiers, and they are not protected, except perhaps by the limited rules of common article 3.

So instead of insinuating personal insults at one of our posters, perhaps you could back up your criticism with citations to specific language supporting your point.

Also, how do YOU define "torture"?

Belphegor,

I'm a bit skeptical of Bobby's military credentials.

I'm a bit skeptical, too! Let's make him produce the secret handshake!

The Geneva Conventions do NOT require combatants to wear uniforms. There are special criteria to cover insurgents and combatants that are not part of a national military. They are treated somewhat differently but they are still afforded protections.

No, you're wrong there. In fact, they DO require combatants to wear uniforms. Although there is an exception for insurgents who still must wear a "fixed distinctive sign recognizable at a distance." The insurgents in Iraq don't wear such a thing. Pat already answered the mail, though, on what protections illegal combatants are entitled to.

While reciprocity is one of the foundations of why the Geneva Conventions were written there's nothing in them that says 'If you don't play by the rules, we don't play by the rules'. As far as I know signatories are required to comply regardless of the actions of other combatants.

Surprisingly, "as far as [you] know" turns out to be just plain wrong. Article 2 states: "Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof." (italics added for emphasis). That is, you're bound and obligated so long as the non-signatory party agrees to comply with the GC-- the Iraqi insurgents are non-signatories and they don't comply with the Geneva Convention, and thus we're not legally bound to give them GC protections (although I think we should, anyway, just from a public diplomacy / information operations perspective). This is somewhat similar to "protected sites" or civilians losing their protected status when combatants use them for a military purpose-- we're no longer legally bound to respect their protection, although we should still try to do so to the greatest extent possible, and we always do.

One of the reasons I serve in the military is because we hold ourselves to high standards and try to operate in ways that are consistant with our values. I also honestly believe that there's no reason we can't win a war - any war - while holding true to our principals.

It's principles, but other than that, I actually agree with you. Not that it has any relation to your previous argument, though.

When people raise this 'we should torture them' nonsense I always tell them "I'm a soldier, I don't rape women, I don't kill babies and I don't torture people. If you want someone who can fill that job description there's someone on trial in Baghdad who might be your kind of guy."

That's a great sound bite, but it's also a straw man. No one here is arguing that we should "rape women" or "kill babies," and you're introducing it to try and make an invalid point valid. The real question is what constitutes "torture"-- is it electroshock therapy or leaving off the air conditioner? Is it making people crouch in a bamboo cage or making them sleep on the floor? How do we tell our military personnel and intelligence operatives that they can't "torture" if we don't clearly define what constitutes "torture"? Unfortunately, the Geneva Convention is rather vague on what does or does not constitute "torture."

This is something we owe our military leaders so that they can apply the clear and appropriate standard to guide our interrogators, and to ensure that our servicemen (and women) are acting in accordance with the will and desire of the American people. Otherwise, what Amnesty International calls a "gulag," a refugee in the Sudan calls "paradise," and it become-- like so many things-- a matter of perspective.

My bad...I'm sorry for my incorrect statements. Damn! I hate being wrong!

I get a little worked up about this subject because I see it as yet another step in eroding the professionalism of our military.

Reciprocity is key and conflicts don't occur in a isolation. I ultimately think we agree with the statement that we should abide by the GC. I probably see us as being more legally bound than you do and think we get on thin ice by seriously contemplating tinkering with the conventions. Will we set a precedent for other nations to interprete the GC how they want?

You're correct that no one is arguing for raping women or killing babies but I do see those as moral equivilants. If you want, remove that phrase from my statement and I stand by it.

I also think that the argument about trying to define torture is a bit of smoke and mirrors. I know what torture is. Anyone raised in a civilized society knows what torture is even if we can't give a clear definition that would stand up in court.

It seems to me (in most cases at least) torture is a bit like pornography. I may not be able to define it but I know it when I see it. We've had standards in place for over 50 years and they've worked well. Ultimately, we're probably better off with gray areas in the GC.

I also think this controversy arose not because there was activity that was just 'skirting the line' between the acceptable and unacceptable but because some wanted to significantly modify the definition of torture and make behavior that is clearly 'over the line' acceptable.

Torture and pornography are easy to recognize in the abstract; it's around the edges that things get very, very fuzzy. Is waterboarding "torture"? We do it to our own troops in training, to prepare them for hostile interrogations. By doing so are we "torturing" them? What about slapping somebody across the face for lying to the interrogator? These are not "legalistic" questions, they are very real questions about what the word means and what kind of balance our country wants to make between our humanity and our self-protection. And remember, any practice you label torture when done to a member of al Qaeda must also be labelled torture when done in college hazings, by police, by religious individuals in initiation ceremonies, etc.

To you or me, accustomed to 3 square meals a day, limiting our food intake to only peanut butter and water might be a very harsh thing to do, but to the Sudanese refugee, it would indeed be heaven on earth. What about keeping somebody up past their bedtime? Torture, or just aggressive questioning technique?

What standards do you assert we've had in place for over 50 years? Are you sure we've never sanctioned the use of techniques like those we are adopting against the likes of Khalid Sheik Mohammed at any time during Korea or Vietnam or the Cold War?

Finally, regarding your last assertion, you acknowledge what you previously denied, that there is indeed a line between things which may be acceptable and things which are "clearly over the line". What is the basis for your belief, this slander against either your superiors or others in our government? What practices do you believe they want to engage in which you consider "clearly over the line"?

I also think that the argument about trying to define torture is a bit of smoke and mirrors. I know what torture is. Anyone raised in a civilized society knows what torture is even if we can't give a clear definition that would stand up in court....I also think this controversy arose not because there was activity that was just 'skirting the line' between the acceptable and unacceptable but because some wanted to significantly modify the definition of torture and make behavior that is clearly 'over the line' acceptable.

We've covered that ground before around here many times, but it's not smoke and mirrors at all. The legal definitions are extremely relevant, especially when you're talking about legal treatment of non-lawful combatants. To repeat: There's a huge legal grey area between what is obviously (and statutorily under US Code) torture, and the GC's permitted treatment of POW's. I have seen no one in charge arguing that we should violate the long-established US Code definition of torture, which by affirmed treaty obligation is also our interpretation of the UN Convention Against Torture [UNCAT]. I have seen many argue that we can get pretty nasty while staying within those laws--and they're absolutely right. Those afflicted with BDS argue that anything past POW-status treatment is "torture," which is clear hyperbole. Oh my! We're denying those poor Gitmo prisoners athletic uniforms and scientific instruments! What barbarians we are!

Vague treaties can only be implemented in domestic law via domestic statute, and the language of Common Article III is vague. The two bills propose somewhat different interpretations of an article previously undefined and uninterpreted in US Code, to conform policy with the treaty. We retain (and always have) the right interpret them in accordance with the domestic law and the Constitution. Regardless of either of the bills passing, ALL detainees are protected from statutorily-defined torture by US Code and the expanded McCain interpretation of UNCAT. Before DTA 2005, they were still protected by the US Code definition. We do not torture (by definition and by policy) that I am aware of, and we prosecute those of our "team" who do--but torture has a very specific meaning in both US and international law, and still leaves that huge grey area.

With POW's meeting the qualifications of the GC's we follow the GC's--even though it means following standards of prisoner treatment and interrogation that are significantly more constrained than American law enforcement is allowed to use. Heck, in a few respects my old high school had "tougher" tools available (restriction of privileges, solitary detention, group punishment for individual offenses, etc.).

But that grey area is still there, if reduced, and "field captures" of unlawful combatants fall into it. They're not POW's, and they're not (despite the big hole in the GC's) completely Fair Game under our laws. Our soldiers have some pretty clear lines to observe--witness the Abu Ghraib prosecutions and the prosecution of both CIA and military personnel in prisoner deaths. Most of the flap is about what the intel agencies do out-of-sight with high-value field captures. They claim they stay in the grey area, and don't cross the hard lines in US Code.

Do they cross them? Got me. I'm not there to watch. But they obviously get up close to the line, if they're so reluctant to give up some of that grey area and want legal protection from being sued in civil court by detainees. And I can understand that those who stayed within the existing lines are nervous that they'll be sued or prosecuted under a different standard when new lines are drawn.

Ultimately, if we tie their hands too tightly as regards interrogation of field-captured unlawful combatants, our soldiers won't bother to capture them at all. They'll just kill them. A dead enemy is much less of a problem than a live prisoner, and there's little point risking troop's lives capturing them if they can't be interrogated. And intel agencies might still capture and interrogate high-value targets overseas--and then make the bodies disappear, rather than holding them alive for war crimes trials and such.

The word is leaking out of Capitol Hill that a deal has been reached, and will be announced shortly.

PatHMV,

Yes, waterbording is torture. Article 1 of the UN Convention Against Torture states:
"Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

Waterbording, where the victim is made to believe they will be drowned, clearly classifies as 'severe' pain or suffering.

Changing ones diet from wonderful meals to peanut butter is not torture. I guess at some point a diet like that might lead to vitamin deficiencies or health issues and once the health problems became 'severe' you would again cross over into torture.

Also, putting a gun on a table and telling a subject to talk is not acceptable, even if no explicit threat is made that he will be shot if he doesn't cooperate. If you think that places too many restrictions on I'd recommend The Interrogators by Chris Mackey. He describes a great deal of success while sticking to conventional military techniques.

There is a significant difference between 'hazing' (as you describe it) and torture. In the cases you mention the hazing is voluntary and it doesn't fit the other criteria for the purposes of torture. It still however may be illegal.

I can't say that we've never sanctioned some sort of 'black ops' that advocates torture. That is different however from publicly changing policy and making torture acceptable practice.

I'd reference the infamous 'torture memo' (http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf#search=%22torture%20memo%22), which has since been overturned, to indicate the severity of actions that our government wanted to sanction. I understand this document is open to interpretation but the fact that they felt it was needed, I think, points to the fact that they did not beleive that existing interrogation techniques were sufficient.

Tully:

Again, I don't argue that withholding exercise equipment is torture. Waterboarding is.

Also, I'd recommend the book I mentioned above to demonstrate that, at a minimum, there is a sound argument to make that we don't need 'special' interrogation techniques to get information.

My guess is that, at some level, people are less concerned with actually getting information from these people and more interested in punishing them and 'showing them who's boss'. If our goal is just to beat the snot out of these people let's just be honest and say "Hey, we're pissed about 9/11 and we want to make somebody pay. Since we can't seem to get OBL, I guess it's your unlucky day."

Again, I don't argue that withholding exercise equipment is torture. Waterboarding is.

Yet both withholding exercise privileges from POW's and waterboarding them are banned by the GC.

The UNCAT definition is, by the way, still very subjective, laden with undefined terms. "Severe mental suffering" is most definitely felt by an addict in withdrawal, for example. See my comment above about waving a burning cigarette in front of a deprived smoker. That's why specific lines are required, not subjective ones. "You can't do this, and you can't do that."

But you can't just say "I know it when I see it!" and prosecute people who have a different perception of what "torture" is on that basis. Field troops generally don't have law degrees. That's why they have to stick to the Army Field Manual, and are prosecuted when they leave those guidelines, such as at Abu Ghraib. Even though what they may do outside those guidelines does not amount to statutory torture.

The CIA, with high-level known terrorists, has much more latitude, but still must adhere to specified techniques, and must get permission on a case-by-case basis to use them. They're not allowed to just routinely use those methods on any prisoner that comes along. The best information I have found indicates that they've been authorized to use those methods with three dozen or fewer specific prisoners, including the fourteen just transferred to Gitmo. The military is completely restricted to the AFM. They're not waterboarding the hundreds at Gitmo.

"It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." --UNCAT

Note that exception, which you can drive a truck through. In some countries that loophole goes very far indeed. It is a "lawful sanction" in much of the Middle East to lop off hands and/or heads for various offenses, for example, to flog or stone, etc. If Jordan captures a high-level terrorist, and perfectly lawfully under their own laws, says to them with complete and believable sincerity, "Talk or be lopped," is that "torture"? Not under UNCAT, it isn't! Not for them--they're merely advising the prisoner of a potential reprieve from a "lawful sanction," a plea bargain of sorts. For us, it would be unlawful torture. If Jordan obtained crucial information doing this, would we refuse to use it save lives because of the way it was obtained? I sure hope not.

See also my example about threatening consequences against spouses and children, a certain "severe mental suffering" ploy. Anecdotal and unconfirmed: When Khalid Shiek Mohammed was captured, Pakistani authorities (reportedly) threatened to kill his wife and children, and KSK said "Fine, they'll be with Allah sooner." Yet he is reported to have cracked after two minutes of waterboarding, revealing details that (reportedly) disrupted several major terrorist plots and saved hundreds or even thousands of innocent lives.

Yep, we should definitely take the high road, even in the "ticking-bomb" scenario. Just tell the victim's families that he probably would have talked in time, but it was immoral to make him talk with "rough methods" that bordered on or even edged into "torture," so you just didn't do it.

Please understand that my point is NOT to defend the use of torture. My point is that specific lines are required to be drawn, and that without those lines, ranting about "Torture!" is nothin' but rhetoric. Without those lines, that grey area WILL be exploited. And those specific lines will still only apply to us and ours, not other nations. We can make all the treaties we like, but each nation will still define them to conform to their own standards. And thus has it ever been.

I did say 'exercise equipment' not 'exercise privliges'. So, prisoners might not be entitled to pilates equipment (if there is such stuff) but they shouldn't be confined 24 hours a day/7 days a week where they couldn't do some sort of calisthenics or exercises. I don't know if that's the legal requirements but it seems pretty common-sense.

The problem with a laundry list of 'Do this/Don't do that' statements is that you'll have people try to find work arounds that technically follow the letter of the law while violating the spirit. My guess is that those vague terms were intentionally included in those conventions to avoid people trying to scam the system.

I agree that troops can't be expected to have law degrees and need guidelines. I guess I don't see why the guidelines we had for interrogators needed to be changed.

I also agree that other countries will have different definitions of torture and different standards. I can't accept the argument however that just because Jordan will cut a suspect's hands off we should be able to as well.

Torture may work under some circumstances but my understanding of the prevailing wisdom is that it generally doesn't and is usually counterproductive.

Regarding the 'ticking bomb', I think those instances are exceedingly rare and should not dictate policy. I saw an interview with McCain where he addressed this issue (I think) quite well. In those very rare instances, the President should have the authority to override existing law. But he'll need to be accountable for his decision. That decision to torture should not be in some middle manager's hands. If we're going to violate some of our core principals as a nation, somebody very high up and ultimately responsible to the people needs to be the one to give the green light.

I do have a great deal of difficulty is giving the administration the benefit of the doubt when they talk about foiled terrorist plots. My suspicion is that they exaggerate the potential damage and how far along it was in the planning/execution process. That's a personal perspective however.

What if we torture someone and it ends up they didn't know anything? We just say 'oops' and move on? Where does that stop? Why not torture everyone? Surely someone must know something that's of time sensitive value. Should we use the ticking bomb argument for U.S. citizens as well? I'm not saying you're advocating any of these positions. I just don't understand where someone would draw the line. If you allow torture in some instances, someone is always going to be able to make the argument that if you expanded it just a little you'd get more information. And, of course, any objections can be met with "Oh...tell the victim's families that he probably would have talked in time, but it was immoral to make him talk with "rough methods"..."

I think we both agree that torture is not something we should engage in. Our difference seems to be the best way to prevent exploitation of the rules. You think that more strict definitions will reduce the grey areas and limit abuses.

I believe that institutional pressures, personal preferences and the stress of combat (or the operating environment more generally) will make people more inclined to commit more and more abusive acts (as in the Stanford Prison Experiment and the Milgram Experiment). Specifics will only allow people more opportunities to find new ways to torture people that aren't included in the definitions (Ah..I can't rip fingernails out. Ok, we'll start with the toenails).

The problem with a laundry list of 'Do this/Don't do that' statements is that you'll have people try to find work arounds that technically follow the letter of the law while violating the spirit.

The problem of NOT having specifics is that it means NO guidelines that don't require expert legal interpretation. We can argue about the "spirit" of the law all we like, but under our legal system you are responsible for obeying the LETTER of the law, not "the spirit." "Guidelines" don't cut it. You need specifics.

Yeah, you said "exercise equipment," but what the GC calls for is "athletic uniforms," which is what I first said. Just thought I'd bat that straw man around a bit since you changed it up.

Torture may work under some circumstances but my understanding of the prevailing wisdom is that it generally doesn't and is usually counterproductive.

Not buying that for a single moment--the "prevailing wisdom" is simply wrong. Forceful interrogation can be extremely productive, and by all reports WAS extremely productive with the 14 just transferred to Gitmo, including KSM. It worked in those cases and apparently saved a lot of lives. BUT...Take two cases, one verified KSM and one guy just pulled in off the field with no ID. The first you KNOW has info you need, and it's at least somewhat time-sensitive. The second may not know anything at all, and will tell you anything if properly abused, just to get you to stop. Even if he doesn't know anything at all, and was picked up on his way to the 7-11 for a quart of goat's milk with his AK over his shoulder for protection against muggers. Ther's a big difference between the two, wouldn't you say?

Regarding the 'ticking bomb', I think those instances are exceedingly rare and should not dictate policy. I saw an interview with McCain where he addressed this issue (I think) quite well. In those very rare instances, the President should have the authority to override existing law. But he'll need to be accountable for his decision.

I agree, and that was apparently exactly the case with the high-value prisoners cited above. I think that for run-of-the-mill captures the widespread use of the nastier techniques is both wrong and counter-productive in many ways, regardless of any apparent results. Many will never break short of those top-end (allowed) methods bordering on statutory torture, and maybe not then, even if they know nothing at all. But using the rough techniques to sort out the high-value subjects from the general captures is both foolish and counter-productive. Someone who doesn't know anything will confess anyway to stop the session. It's the big players that you already know have the info that are candidates.

And that flexible language does indeed require specific guidelines. Once again, cultural differences make VERY real differences under subjective langauge. EX: Is using female interrogators to question Muslim prisoners "degrading" treatment, banned by Common Article III? What about questioning the manhood of Muslim prisoners, which has produced consistently solid results in the field? (Seems their egos are really touchy that way.) Is that a GC-violating assault on "personal dignity" under Common Article III? And so on.

With POW's, you go by the book, and the book is strict indeed, stricter than American police standards. Which is righteous--a suspect in police custody can always end questioning and demand an attorney, where a POW can not. Polite questioning not to exceed four hours a day in not over two hour sessions, with no coercion whatsoever. With unlawful combatants not covered as GC POW's (your run of the mill Gitmo prisoner) many more options are available, but "rough techniques" are still out. (The Gitmo prisoners have some of the best legal representation available, BTW.)

Known high-value prisoners are where the current arguments and debate are applicable. The ticking bomb, the top-level planner, the terrorist executive. Like KSM. And even those should still not be tortured, under the strict sense of the word. The debate is, how un-strict do we get with the KSM's? Where do we draw the line with the ticking time bomb?

Postscript: word is that the agreement would specifically bar waterboarding, and "other extremely harsh interrogation techniques." No explanation of what those others are.

According to the UK Guardian (so take it with a grain of salt) the six techniques allowed under subject-specific authorizations (meaning ONLY for designated prisoners, authorized by top-level command on a case-by-case basis) are:

Induced hypothermia; forcing suspects to stand for prolonged periods; sleep deprivation; a technique called "the attention grab" where a suspect's shirt is forcefully seized; the "attention slap" or open hand slapping that hurts but does not lead to physical damage; the "belly slap"; and sound and light manipulation.

The "slap" techniques are classed as one.