Thursday, July 14, 2005
Defining "Humane" Down, Part III -- The Schmidt Report
The term "Orwellian" is so routinely used to describe the degradation of common meaning in public discourse that it's lost much of its rhetorical oomph. But if ever it were appropriate to invoke that hoary adjective, perhaps now's the time. Recall the Ministry of Truth in "1984": "WAR IS PEACE; FREEDOM IS SLAVERY; IGNORANCE IS STRENGTH," right? Well, would you believe . . .
If you really want to get down to the brass tacks, Marty, any coersion whatsoever is forbidden by the Geneva Conventions.
By definition, detention is coersive. The detainee may not leave.
Ergo, all questioning of a detained individual is forbidden by the Geneva Conventions.
I’m looking forward to hearing your suggestions about how the troops should go about trying to collect humint. Would you suggest, for example, that questioning should be done with an attorney present, under constitutional standards? (Trial of EPW, of course, is also forbidden by the Geneva Conventions, but that doesn’t mean we can’t force our soldiers to abide by the Constitution.
This post very accurately describes the concerns that grow from the release of a summary of the Schmidt report. At the top of the list we must place the erosion of the traditional limitations imposed on interrogation that started with article 16 of the Lieber Code (1863) and have been carried forward from that date, most recently embodied in FM 34-52. Many of the practices that Schmidt views as "authorized" clearly were not authorized under prior understandings of the Field Manual. Consequently, there has been a degradation of the standards fixed by US military doctrine, not to speak of the Geneva Conventions and related international instruments. Senator McCain's questions yesterday were clearly moved by this same concern. One can only hope that veterans like McCain, Graham, Hagel and Warner will take effective action to resurrect historical US military practice, which was a thing to be proud of.
Al Maviva's comments are probably intended to be satirical. The statement that "any coersion [sic] whatsoever is forbidden by the Geneva Conventions... ergo all questioning of a detained individual is forbidden by the Geneva Conventions" sounds like the sort of flawed syllogism used in introduction to philsophy classes. Of course the Geneva Conventions do not contain such a absolute prohibition - the protections against coercion exist largely for the benefit of EPWs, and are certainly not so clearly available for other types of detainees - and the right of interrogation is clearly preserved. Indeed, the detaining power is obligated to interrogate to some extent for the purpose of establishing identity, e.g. Likewise, the statement that the EPW cannot be tried is ridiculous. The Geneva Conventions say just the opposite - trials are welcome, but charges and proceedings do have to meet minimum standards. It sounds to me like Al Maviva has never read the Geneva Conventions. Perhaps s/he writes for the WSJ editorial page.
I wonder, Diogenes, if you've shone your lantern of Truth on Article 17, Third Convention, of the Geneval Conventions. That Article states:
“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”
Article 17, Third Convention.
By that definition, any interrogation of an EPW whatsoever is a violation of the Conventions. I presume you believe the Gitmo detainees are entitled to EPW status - otherwise you necessarily are in agreement with the authors of the torture memos that captured AQ fighters do not fit into a Geneva Conventions category as protected EPW, per Article 4(A), Third Convention.
My understanding has always been that although coercion is facially prohibited, that customary international law - the law of land warfare – is a normative interpretive device, and that interrogation of EPW is permissible within reasonable bounds, allowing for some forms of coercion. My understanding is also that this is the interpretation followed by the NATO nations, and most other nations in the Western orbit. (Developing world nations have typically applied somewhat lesser standards).
Assuming the Army's FM is off limits, I am really truly seriously wondering what alternatives are proposed to glean information, or if captured AQ fighters are simply off limits?
There is a slight problem, of course, with applying Constitutional standards to captured AQ. (Aside from the practical fact that in a firefight, it’s probably tough to follow Constitutional norms for use of deadly force, Miranda rights advisement, warrant & probable cause requirements, etc.) That problem is that if captured AQ enjoy the full complement of Constitutional rights, one of those rights is the right to a speedy trial. Yet the Conventions prohibit the trial of EPW, except for the purposes of war crimes / crimes against humanity tribunals. Article 84, Third Convention generally prohibits the trial of EPW by civilian courts, and Article 99 prohibits the trial of EPW, especially where coercion has been used to induce confession, as in battlefield and post-battlefield interrogation.
I again pose the question to both of you - who are obviously much sharper than I am in this area of the law - what are we to do with captured AQ?
With respect to EPWs, the Geneva Conventions preclude the use of coercion. That much is correct. What is incorrect is the assumption that this preclusion applies to all types of detainees (it does not), and the assumption that coercion precludes the practice of interrogation altogether (it does not). FM 34-52 as it hitherto existed stated the restrictions very accurately, and the US military could and did use those standards in conducting interrogations of EPWs that fully conformed to the Geneva Conventions. It is true that there is some lack of clarity as to what is and what is not coercion for purposes of the Geneva Conventions, and in particular GCIII(17). But the construction that Al Maviva applies is ludicrous, not backed by Jean Pictet's commentary, the ICRC, the US Field Manuals or those of any other state party with which I am familiar.
It doesn't seem so "inhumane" to me to have a female guard dance around and rub against a male detainee, or to deprive the inmate of his clothing, or to smear fake menstrual blood on him etc. Many on your side of the aisle would (a) think this was funny if done to a conservative Christian, just as they thought it was funny to read an article about Jerry Falwell having sex with his mother in an outhouse and (b) argue strenuously that female prison guards may not be deprived of equal employment opportunity, meaning that female guards most certainly do conduct strip searches of male inmates, United States citizens, in United States prisons, even if those prisoners are devout Muslims or conservative Christians. So since we do this kind of thing to our own, with judicial and left/liberal academic blessing, I can't get too outraged about doing it to our enemies, and neither can most Americans.
The satire (which was not really that funny) that a unanimous SC opinion upheld as protected of course involves a person reading a cartoon and doing it on their own. Those who don't want to don't have to. So, I assume Sean is somehow making a (again not too funny) joke.
The administration et. al. didn't want to be totally aboveboard and out in the open in drawing hard lines in this messy area. Maybe they need not worry if some of these comments are to be taken seriously.
'... since we do this kind of thing to our own..." And this type of reasoning is valid? It reminds me of sibling fights without a parent to referee.
This is why treaties such as the Geneva Convention were signed-to give prisoners some legal rights while captured-to act as a referee between warring parties. This is the view of a non-lawyer) If the abuse that occured at GTMO or Abu Gharib had been inflicted upon captured US soldiers-the outcry would have been loud from all sides.
The comment by Al Maviva that all questining is forbidden by the Geneva Conventions is incorrect.
The Conventions specificallly allow for the questioning of prisoners. The restrictions exist because such questioning is allowed. If it were forbidden then there would be no need to limit it to non-coercive measures.
Sean says he doesn't see the use of acts seen as degrading to the source are abuse.(I will not comment on his blanket assertions about what those on the other side of the political spectrum would feel about it being done to those of religious persuasions other than Muslim).
Not only are the Conventions clear on this (it's prohibited) but respect for the rule of law would preclude it (as do the actual mechanics of fruitful collection of information from a source). One could argue that feeding a prisoner on a diet of maggots and live roaches, with a side dish of bread, mixed with water to form a glop is also not degrading, nor morally wrong, because it meets the requirements for sustaiment of life.
Diogenes tries to make an exception for non-EPWs (which is all persons not entitled to EPW status, which is [from the point of view of privileges; and some rights] the second most desireable, of the four possible categorizations of prisoners, Retained Persons, EPW, Protected Persons and Detained Persons. There are also displaced persons (who may be placed into protective custody, of a liberal nature) and persons who are held in connection with criminal actvity conducted after the occupation by the hostile power takes place, but those last are not parcel to the debate at hand).
Geneva, however, makes no such exceptions, nor does it make exception for, "non-lawful combatants" who would fall into the category of either EPW, or Detained Person.
In any case the abuse and torture of them is prohibited.
His comments on the use of, "contitutional means," (including Miranda) on the battlefield is a red-herring, as the Constitution quite simply allows the nation to engage in war, and war is a beast which has its own set of rules.
The use of things like Miranda, warrants, et alia, are features of law enforcement operations. It is a useful question as to whether the War on Terrorism ought to be fought on a law enforcement model, or a military one, but so long as a military model is the one in use, trying to say the impossibilty of the use of law enforcement means to gain prisoners, means we no longer need to behave lawfully after we apprehend them is not only wrong (both from a practical, and legal standpoint) it is reprehensible on a moral level.
For those who care, I am not only a military interrogator, but I teach the subject. For recent practical knowledge, I was in the V Corps interrogation center from before the shooting started in 2003, until the active shooting stopped and it was disbanded.
Diogenes (who also teaches this subject) agrees with Pecunium, and was indeed thinking specifically of the case of persons apprehended by an occupier in connection with criminal activities when commenting on the detainee/not protected from coercion category. For such detainees the broader protections of Common Article 3 come into play, plus the legal regime of the host country.
With respect to Sean's statement - there is some interesting precedent, namely the Puritan John Bunyan's account of his incarceration by the Royalists in Bedford - in which he describes taunting and ridicule of just the sort that Sean imagines. Bunyan wrote about it, and his experiences were well known by the Founding Fathers (Pilgrim's Progress was the most widely circulated English language books after the King James Bible). It's noteworthy that George Washington gave specific orders requiring that the religious beliefs of prisoners be respected, and Abraham Lincoln wrote the same order into General Orders No. 100 during the Civil War, for good measure directing that soldiers who demonstrated disrespect for the religious beliefs of a prisoner or residents of an occupied zone be flogged. Lincoln wrote that he did this not merely because it was the right thing to do morally, but also because it would be injurious to the nation's cause for the war to generate into religious strife of any sort. Bush made the same pronouncements at the start of this conflict, but the imporance of this observation seems to have gone lost. So US military doctrine on this point was very clear. Something went off the tracks in 2002, and I give credit to Graham, McCain and Warner for trying to put things back in order. Those engaged in interrogation are entitled to clear, unambiguous guidelines. They shouldn't be scapegoated to doing what some political figures want but are too timid to publicly seek. The senators are approaching this in a dignified way, blunting efforts to make a partisan fracas of it, and that is what the country and the uniformed services need at this point.
In moral questions one must look at the alternatives.
If abuse is necessary to prevent murder why wouldn't abuse be morally acceptable? Especially against an enemy who sees nothing wrong with killing twenty children to kill one American.
Utopia is not an option. Especially in war.
And how, Diogenes, would George Washington have felt about the government sponsoring pictures of the Virgin Mary made of vaginas? I don't think things went off the track in 2002? Have you ever heard of chickens coming home to roost? You and your comrades now face the difficult task of persuading Americans that the government must respect Islam more than it respects Christianity.
"In moral questions one must look at the alternatives.
If abuse is necessary to prevent murder why wouldn't abuse be morally acceptable? "
Your syllogism is corrupt because you assume that abuse IS necessary to prevent murder. Not only is it not clear that abuse prevents murder, but it may be true that abuse encourages murder.
The further issue is whether even if abuse could by some means be shown to reduce murder or result in useful information, if torture and CID could somehow be justified on that basis alone. That is a separate debate and is equally worthy of serious consideration.
This is center of this entire debate - you should refrain from blithely assuming that which needs to be proven.
while for the most part, this has, as usual in this blog, been an extremely interesting debate, as occasionally happens, we get bogged down once in a while in the irrelevant, and sometimes in the downright insulting.
sean, the point on this issue is not liberal versus conservative. pictures of the virgin mary, no matter how distasteful in the context you refer to, have nothing to do with the original post, or anything else that followed. you cannot seriously argue that liberals have solely brought gitmo and abu ghraib upon us. the question is not how we explain why islam should be given more due respect than christianity by this government, but why you apparently believe, in spite of the constitution, that it should not get equal respect, as all peaceful religions should.... and don't tell me that there are no peaceful muslims in the world.
I carefully worded my statement.
I did not say " Since abuse is necessary..."
I said "If....."
Some repots hve said that abusive interrogations are fruitful. Other reports and diogenes have said it is not.
My mind is not yet made up on the subject.
I carefully worded my statement.
I did not say " Since abuse is necessary..."
I said "If....."
Fair enough. I apologize for jumping to conclusions. Nevertheless, I do think there are collateral considerations besides whether torture and CID are effective in garnering useful information (of course this is putting aside for the moment all the relevant international law, the UCMJ and the reasons for the existence of the Geneva Conventions in the first place). For instance, there are considerations of what impact a policy of torture and CID would have on foreign relations as well as concerns about treatment of our own soldiers upon their capture. Further, I think this debate should be conducted ex ante to decide what measures to use and should not be done ex post to justify what has already been done. The burden of persuasion on such an issue should lie with those pushing to use torture and CID and not with those trying to condemn it.
Our adversaries are not signatories of the Geneva Conventiions.
Not as official action nor by respect unofficially.
Thus they are not accorded the privledges and immunities of the convention.
Perhaps a little tit-for-tat might encourage them to change their behavior. Then again perhaps not.
For the Geneva Conventions to be in effect both sides must abide by them. In the current war such is not the case. I'm not talking about mistakes or the occasional attrocity which in war are not uncommon. I'm talking about general policy.
m. simon is right that for the geneva conventions to be in effect both sides must abide by them; however, the argument over the use of torture and/or abuse goes beyond who the perceived enemy is. remember, not only are we fighting an amorphous group taht simply doesn't adhere to ordinary rules of humanity, but we are also confronted with another problem that is related to nearly everything that we do, and that is the perception of the american soldier by the population of the middle east countries.
there are many countries that are signatory to the geneva convention or simply observe the rule of human decency in general, who are not "friends" of the united states. this would include the countries of the middle east, where we are not exactly the most popular people at present. when the images of gitmo and abu ghraib are shown there, it inflames passions against our country, and can only serve to put our soldiers in a more negative light, fanning the flames of prejudice against them, and thereby making their jobs more difficult and dangerous. you can go forward with your eye for an eye approach, and reap the consequences from all sides, or you can demonstrate the decency and humanity of our country within the population of the middle east, while still being tough on our enemies. this means not crossing the line into actions that degradate ourselves.
I agree with your points.
The question of most import is a political one. What is the trade off of intel vs. world public opinion?
Saw a bit on Al Jazeera today (11th dateline) that said indiscrimnate killing by aQ was hurting the Muslim war effort.
I'd say 50 dead bodies trumps a lot of thong head dresses.
First off, let me say that my post was considering a policy of torture and CID in the abstract, irrespective of international law. Nevertheless, to address your comment I should say that although the Geneva Conventions, read literally, MAY support your contention that both parties to an international armed conflict must be signatories of the convention, the Geneva Conventions, specifically Common Article 1 and Common Article 3 (although entire convention as well considering the Tokyo cases after WWII and the recently released report by the International Red Cross), are generally considered customary international law and the policies against torture are considered non-derogable duties under the ICCPR.
It is further worthwhile to note that Jean Pictet in the ICRC Commentary on the Geneva Conventions of 1949, Volume III, also cited in the January 11, 2002 memo from William H. Taft IV to John Yoo, stated:
"By undertaking this obligation [of Article 1] at the very outset, the Contracting Parties drew attention to the fact that it is not merely an engagement concluded on a basis of reciprocity, binding each party to contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties. Each State contracts obligations ‘vis-à-vis’ itself and at the same time ‘vis-à-vis’ the others."
The nature of the conventions themselves implies an obligation based not simply on reciprocity but on obligations to the community as a whole. As such, the U.S. contractually obligated itself to apply the GPW to all instances of armed conflict, independent of the status of the opposition as a high contracting party.
Let me say also that I am not entirely convinced, again in the abstract, that there may not be a place for interrogation techniques that extend beyond those commonly allowed under relevant international law and the ICMJ. However, I think that this is a discussion that requires far more treatment than simply suggesting that we should engage in tit for tat and let them have a taste of their own medicine.
Actually, phq, I sincerely doubt that an Army without female members, with soldiers who did not have extensive exposure to pornography, would have produced Abu Ghraib.
m. simon, i understand your point, but would you feel the same if those fifty dead bodies were caused, at least in part by the reaction to the "thong head dresses"?
so i take it, sean, that you believe then that all female soldiers are bad for the army, that all soldiers have been extensively exposed at some point to pornography, and that they were all so exposed by liberals; therefore, we are now excusing the use of torture as authorized by the army brass, who by your definition are soldiers, so they must be filled with visions from pornography, who got their marching orders from the commander in chief, who... i think i'm finished commenting on this post. let's move on...
On the basest level, these arguments lack the very thing they are representing-- humanity. For those more fundamentalist combatants, what happened to to Jesus's plea in the Sermon on the Mount to turn the other cheek instead? If one argues on behalf of an "eye for an eye", what regulates that venegeful exchange?
Contracts such as the Geneva Conventions declare our membership to a larger community embodied by equals- human beings. (This country in particular spends much time reminding itself and other global members of humanity that ALL parties are equal. I don't believe we are willing to take that step backwards.) We define those moral absolutes ("Thou shalt not kill"- even if the person is negligent, reckless or perhaps even a murderer) in statements of law or contracts more to establish ourselves as members of a community than just to provide constructs for that community. If we can choose how and when to abide by these covenants, than what is to stop us from disregarding them all together? While no one will deny that some parties do and have chosen to disregard these contracts, are we willing to become complicit in this malfeasance?
There is great value to simply taking the high road.
The assumption in that if are huge.
Simply put, abuse won't prevent murder, nor is it likely to reveal ticking bombs or buried kidnappees.
I, as a person who has been doing this work for more than a dozen years, very much doubt that 1: abuse has actually generated useful information, and 2: that those persons being interrogated years after their capture are still providing useful information, and 3: that any such useful information can only be practically obtained with non-abusive means.
The use of force (mental or physical) introduces a host of problems, in collection, validation and interpretation of information.
At the collection level the source is taught ignorance is not an acceptable condition, so that even when ignorant he must answer, or suffer. Thus the truth stops being a thing to maintain.
Further the interrogator is self-rewarding for the use of force. When he gets what he sees as a non-responsive answer he smack the source, who then answers, which proves to the interrogator that force works.
Secondarily he gets outside positive reinforcement when he is praised by his superiors for getting information.
This leads to people looking for confirmation, and the use of force to gain it; which is prone to problems of confirmational bias. If a source has reported X, then other sources must be asked about X, when they claim ignorance they get hit, and then they report that X is in fact the case. At this point the information stream is hopelessly corrupted.
As for the, "moral" question, the Catholic Church (of which I am still a member, though somewhat more heterodox than the Church would like) has a clear opinion, one may not do evil that a good may come of it.
If it is immoral to torture someone, it is immoral. Just because it might lead to a desireable end, and that end is a good, doesn't justify a position of moral relativism.
Wrong, as the Religious Right are so fond of telling us is wrong, no matter how much fun it may be, nor yet how harmless it may seem.
As I see torture, abuse and the violation of law and custom (and much of what makes war as civilised as it is is the effect of custom, which is why I can sit here in Ukraine, and drink with people who were trained to kill me) as decidedly not harmless, and certainly not fun.
The allegation that Abu Ghraib is the result of women being in the army, with or without the exposure to pornography (and the connection seems appallingly tenous to me, since the base documents from which the abuses and tortures in Khandahar, and the behaviours at Abu Ghraib seem to stem predate, by decades, the widespread availabilty (which doesn't mean exposure) to pornography. I point out by way of anecdotal refutation that Holland has had a longer availability of pornography, and they have both a non-record of such abuses of EPWs in their care (though the numbers are small) but none of the prisoner abuses we see in civil prisons either) is poppycock. Men, absent the presence of women have been torturing, and sexually abusing, other men since time immemorial.
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