Thursday, July 13, 2006
Not-so-Common Article 3
Well, as I suggested, the Administration's noises about how, in the wake of Hamdan, it was finally going to comply with Common Article 3 of the Geneva Conventions, are not quite what they were cracked up to be in the eager, early press releases.
So the England memo, besides being a tactical gesture to help Haynes's confirmation and a PR triumph in the SCLM, is also a stopgap for the brief interval between Hamdan and the abolition of CA3.
That would explain its implausibility--it's not expected to carry much weight for very long.
I can't figure Graham out. You've written once or twice before (possibly more) about times that he's been really admirable in defending our detainees. Then he turns around and does something like this. He must know what he's doing here. Do you (or any of the other commenters here) have a sense of what's going on with that? I'm planning on writing a letter to him on the theory that he's not totally beyond hope, and I want to make it as effective as possible.
Any pointers, advice, or information anyone can provide would be a big help and could just possibly make some kind of difference. If you or anyone else wants to write the letter with me, that would be great, but just helping me get past this stage where I'm totally baffled by him would be of great help.
Thanks in advance,
Here are a few Graham-related links I've collected so far and a very brief discussion of why I'm writing to him.
Really, any analysis of his motivation would help me a lot. I feel like if this were put in the right terms, he'd see how much damage he's doing and change course. I know that's stupidly idealistic, but I'm going to try anyway.
Field Manual 34-52 is actually available in PDF form from the U.S. Army itself at this link.
In the Armed Services Committee hearing yesterday with six former and retired JAG’s including the JAG for each of the four services one thing struck me and I am looking forward to reading the transcript of the testimony.
If you go to www.c-span.org and click on Senate Armed Services Committee Hearing on Hamdan and go in to about 2 hours and 58 or 59 minutes you can see this exchange.
In the second round of questioning by Senator Lindsay Graham he went to the nub of the issue in addressing to what standard are soldiers trained. At the point of capture, soldiers are trained to treat everyone like a POW was the mantra of all four uniformed JAG’s. Graham went on behind that to when a military interrogator or civilian interrogator now gets access to that person captured on a POW standard basis. Such military or civilian interrogator may understand the person does not have POW status. Prior to Hamdan, such military or civilian interrogator and his/her chain of command giving orders would have not thought Common Article 3 applied pursuant to President Bush’s February 7, 2002 memo but rather the humane treatment/military necessity standard.
Graham’s concern in light of Hamdan was how to get such interrogators clear instructions so that they do not do something that violates Common Article 3. Everyone agreed that violation of Common Article 3 would be a War Crime under War Crime Act (as did administration types speaking at other hearings this week).
Graham pushed further by asking the JAG’s whether any techniques approved prior to Hamdan violated Common Article 3. The four uniformed JAG’s and two retired either said yes or agreed because Graham said something like “let the record show that all assented to the question.” This admission/opinion I found extraordinarily significant because we must remember that Common Article 3 was the law of the land from 2000-2006. The only thing (we’ll keep it simple for the purposes of this message) that changed was the President’s February 7, 2002 order and the rest of it.
Now there is some language for a “corporal’s defense” in the Detainee Treatment Act about “order/reasonable person not understand as unlawful” to provide a defense for military or civilian interrogators but that seems to me does not prevent the charging of persons who ordered and or acquiesced in or used the techniques whether military or civilian and that defense is weaker the higher you go up the chain in command. Obviously there is more on this but I found that admission very clear.
So what struck me is the consensus that some approved techniques violated Common Article 3 and violation of Common Article 3 is a crime under the War Crimes Act. Add to that former Colin Powell’s former Chief of Staff Wilkerson’s statements that there is a paper trail from the White House all the way down on this and you have a package (Jordan has brought this out in his pieces also but we now have this admission too).
It was a very extraordinary hearing. Please listen to the tape and tell me if my ears are fooling me.
Ben,Post a Comment
Thank you for the discussion. It seems like the perfect thing for me to look at before I write the letter I mentioned above. Unfortunately, I can't get the C-Span link to work! Can you:
a) find a transcript
b) write down a few quotes from the exchange so that I can find the transcript?
Also, it sounds like you're very well informed about this sort of thing. If you'd like to collaborate on the letter, let me know.
Thanks again for the C-Span find,