Wednesday, September 06, 2006
The CIA's "Alternative Set of Procedures": Calling Things by Their Right Names
There was some very good news today -- namely, that in its revised Army Field Manual, and accompanying Directive 2310.01E, the Department of Defense appears to have committed, at least for the time being, to prohibiting the use of unlawful and abusive techniques, and to compliance with Common Article 3 of the Geneva Conventions. The new Army Field Manual goes even further, providing numerous examples of techniques -- many of which Donald Rumsfeld and Jim Haynes had previously (and eroneously) approved as "legally available" -- that will will now be off limits for all detainess in DoD custody, including: forcing a detainee to be naked or perform sexual acts; using beatings and other forms of causing pain, including electric shocks; placing hoods over prisoners’ heads or tape on their eyes; mock executions; withholding food, water or medical care; using dogs against detainees; and waterboarding.
... the draft Administration bill would (i) retroactively legalize all the unlawful acts that were approved and performed from 2001 to the present day (see section 9, page 86) ...
I don't think there's any mileage in demanding that all members of the military who violated the Geneva Conventions be exposed to criminal liability, even if by rights they should be. A better alternative would be to immunize anyone with a rank below, say, Major or Lieutenant Commander for acts performed under orders.
Moving beyond secret prisonsPost a Comment
As the President has now made his long awaited admission that there have been secret CIA prisons around the world in which individuals have been held in prolonged, secret incommunicado detention in clear violation of international law (see American Society of International Law Centennial Resolution at http://www.asil.org/events/am06/resolutions.html), one has a sense of relief that the coverup is lifting and the truth at least in part has finally started to come out. In due course I am certain we will learn that the “tough” interrogation techniques admittedly used in these secret detention facilities violated Common Article 3 of the Geneva Conventions. Thus, if one was somehow still in denial, one must come to terms with the dawning realization through these admissions that violations of international humanitarian law and war crimes have been committed by the United States that were authorized by the highest levels of civilian authority of the United States.
It is important that we do not think of this failure of our leadership to respect the most elemental aspects of international law as a failure of the Executive. In time, I hope that the ranking members of the Senate and House committees (Armed Services and Intelligence Committees and possibly others) and others (dare I say the Chief Justice of the Supreme Court and/or FISA Court?) who were briefed in some manner about these practices will also come forward and tell the American people and the world (1) what did they know? (2) when did they know it? This failure is a failure of the United States and falls on each of our shoulders as a collective shame.
I hope there will come a day when on the floor of the Senate, the Senators will reveal what they knew and on the floor of the House the House members will reveal what they knew and apologize. I hope there will be a day when the United States will make an apology to the world for its weakening of the rule of law through these types of actions.
We can recognize the good intentions behind these illegal orders – to protect the American people. But the departure from civilized standards that they demonstrate in the face of substantial credible internal opposition suggests a terrible failure of character that has besmirched American honor. We ask them also to keep our honor clean and faithfully execute our laws.
How do we get back to being our selves? Might I suggest that Congress start by rejecting the Bush Administration’s Military Commission legislation which is a thinly veiled effort to amnesty actions that were done in the 2001-2006 period. Second, Congress should take its lead from the Military JAG Officers testimony this summer in fashioning a set of military commissions that start from the Uniform Code of Military Justice. We should not go off half-cocked but rather draw on the history and experience under that Code to fashion an adequate procedure that meets the strictures of our statutory and international law obligations as Hamdan has reminded all again. Third, Congress should simply refrain from any measures which would have the effect of amnestying or reducing the criminal and/or civil liability of those who authorized or engaged over the past years in the departures from civilized standards that are coming to light. The full extent of those departures (extraordinary renditions, torture and cruel inhuman and degrading treatment etc) from civilized standards are still far too unknown and merit serious examination and, as warranted, prosecution. The operative rule should be that the only salvation for those seeking to escape criminal and/or civil liability for their actions should be the Presidential pardon – not Congressional cravenness.