Comments: Do It

Have you actually read the proposed McCain amendment?

This amendment would (1) establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees and (2) prohibit cruel, inhuman, and degrading treatment of persons in the detention of the U.S. government.

Okay, Part (1) seems reasonable, especially since Field Manuals are living documents. My only change is make the document a Joint publication to reflect its status as a cross-service standard.

But let's look deeper at (2). What is the standard for cruel, inhuman, or degrading treatment? McCain cites "The binding Convention Against Torture, negotiated by the Reagan administration and ratified by the Senate, prohibits cruel, inhuman, and degrading treatment." Okay, so what is the definition in that treaty?

The document defines torture in Article 1.

Article 16 adds "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading."

Nowhere can you find a 'standard' for "not amounting to torture." In fact, some of the accepted procedures McCain would use as the "gold standard" in part (1) might violate the "degrading" section of (2). I say might because the amendment does not answer the question.

Do we set up a panel and have a separate document that defines "inhuman" or degrading? Are the definitions of those items comparable to the "I know it when I see it" definition of pornography said by one SCOTUS Justice? Do we have apply cultural relativism in the standard - is serving pork degrading to certain people?

I find it ironic some of the people complaining (perhaps correctly) the Administration failed to plan for the contingency of having large number of detainees with questionable or unclear legal status are the same ones who want to hand this pile of vague and conflicting guidance onto our armed forces. If McCain had stopped at (1), okay - after all, Congress (Section 1, Article 8) is supposed to regulate the armed forces.

However, don't make the same mistake you claim you're attempting to correct.

Posted by Col Steve at November 23, 2005 11:22 AM

#1 - My first point? Has always been that we shouldn't be holding a "large number of detainees with questionable or unclear legal status." I despise the hypocrisy of the "enemy combatant" status that the Bush Administration is using to bypass not only the Geneva Conventions but any standard of common decency I've ever encountered.

We declared war on Iraq in all but name, so the prisoners we're holding are prisoners of war. And even if they weren't? It's a moral issue.

I don't want a President who says, "We don't torture." I want a President who actually does not condone torture.

#2 - No, the McCain amendment doesn't attempt to define behavior that might be degrading without being torture.

You can't possibly sit down and enumerate all of the ways you could degrade, humiliate, or torment a human being while still stopping short of actual "torture."

And you know what? We don't need to. This isn't behavior that's undertaken accidentally. These aren't cultural differences and misunderstandings of someone's social rules or religion. This is how prisoners are deliberately treated for the express purpose of degrading and humiliating them.

So let's not search for spurious ethical loopholes so that we can pretend we didn't know that having a dog with razor-sharp, three-inch teeth sniffing your dick would give you nightmares, okay?

No, I can't define pornography. But you know what? I do know it when I see it. And I know torture and inhumane treatment when I see them, as well. And I remain absolutely furious that this country is itself so far degraded that we're actually having a public debate over how much torture is okay.

And that some of us not only feel it's necessary to have a whole new law specifically against torture, but that we can't get such a law passed.

Posted by Anne at November 23, 2005 11:44 AM

Aarrgghh. Col. Steve, I feel like I'm shouting at you today and maybe I should apologize. This whole torturing prisoners thing is a real hot button of mine.

In fact, war is a real hot button of mine.

I always value your input and while my responses to your comments may not sound like it, I always give a lot of thought to what you say.

Posted by Anne at November 23, 2005 11:45 AM

Happy Thanksgiving.

I understand your point. No need for apologies.

The questionable or unclear status remains whether we have "declared" war or not on Iraq (which is a responsibility of Congress - an institution that for the past 50 years seems to have ducked that responsibility). The Geneva convention and other treaties require certain responsibilities on combatants to receive the status of prisoner of war.

Having said that, I agree with your next point - even if detainees are not POWs, there still remains a moral obligation with regard to treatment. I definitely fault the Administration on this point. The President while at the UN should have also stood up and put the UN on the spot to address it. Clearly, there is a need for a terrorist equivalent of the Geneva convention. In the probable event the UN would fumble this issue, the US should have stepped up and put out something as opposed to getting into a legal parsing dilemma that undermines the larger objectives of our efforts.

My solution at this point is to release the majority of folks at Gitmo, publically thanking them for their cooperation and information.

You can't possibly sit down and enumerate all of the ways you could degrade, humiliate, or torment a human being while still stopping short of actual "torture."

Exactly my point. If McCain et al were serious about this legislation, they would have stopped at Point 1. Period.

I also agree with your point on inhuman treatment (to a degree). Clearly, there are activities and behaviors military professionals know, even in the absence of concrete guidance, are just not right. Period. There is also a responsibility for military professionals to raise the issue when confusion or questions exist (one reason I don't have much sympathy for Janis Karpinski - I didn't comment on your post, but her book is sold in military bookstores).

You raise an obvious example. My example was not to get a pass; the example was meant to show the boundary gets more difficult to determine when you move away from the extreme.

I maintain we have a legitimate right to collect intelligence from captured personnel. The prisoner / detainee has a certain set of rights concerning his treatment. Somewhere those rights intersect. If I or my soldiers are to be held legally accountable for "degrading" treatment, I want to make sure that 18 year old knows exactly what that term means and where that intersection occurs.

Often, the soldier has to fall back in situations of short decision cycle times under duress on his training and development prior to conducting operations. I believe this requires the profession to think harder about these issues before conflict occurs. Shame on us and our leadership for missing those opportunities for greater reflection in the 90s and early 2000s despite indicators such as Somalia and the Balkans.

Conflict and conflict resolution is a hot button issue here too.

Posted by Col Steve at November 23, 2005 01:57 PM

Col. Steve, I hope you had a good Thanksgiving!

It may or may not surprise you to learn that I agree with almost everything you say, up to and including how incredibly difficult it might be to make the right "snap" decision about what actions are unacceptable when under stress.

I agree that we need a well thought-out policy with clear guidelines. The soldiers in these situations are entitled to be trained to handle them. I think it's part of our responsibility to our military to try and make sure they're properly equipped, and not just with bullets and armor, to handle the situations they're likely to face.

Having said that, it's not possible to pretend that attaching electric wires to another human being is a "murky" situation or that a pile of naked bodies is somehow "walking the line" of ethical behavior. So, while we're hammering out the detailed policy, how about we all agree on the fundamentals of not actually torturing people?

Just as a starting point, you know? Stand up, today and say, "well, to begin with, we know there won't be any more of that going on." And open Gitmo's doors to the U.N.'s inspection team. Wide open.

As far as your remark about the U.N. and the president go, I disagree. He was in no position to stand up in front of the U.N. and lecture anyone about human rights with the bodies of "interrogated" prisoners stacking up behind him.

We should be leading, not only with words, but by example and the example we've been setting under this Administration is a horrible one. That's one of the huge problems a situation like this creates. We're becoming a cautionary tale, not a shining example of democracy in action.

(Having Bush, when his back is pushed completely against a wall, make a statement like, "we do not torture" when the evidence to the contrary is there in front of the entire world, and while Cheney is publicly lobbying for the CIA's right to torture? Is the kind of hypocrisy that makes it impossible for me to support this Administration under any circumstances.)

The whole, "making war around the globe without having the courage to actually declare war on anyone" thing is a whole 'nother subject and one that I've pondered from time to time.

Posted by Anne at November 25, 2005 08:53 AM

As far as your remark about the U.N. and the president go, I disagree. He was in no position to stand up in front of the U.N. and lecture anyone about human rights with the bodies of "interrogated" prisoners stacking up behind him.

I meant in Sep 2002 when he addressed the UN..before Iraq but after Afghanistan when the issue of detainee status was becoming apparent.

As for the example, such conduct is against regulations already on the books. Those soldiers knew or should have know that - and ignorance is no excuse in these cases. Personally, I'd close GITMO as the value of intelligence by now must be slim (I'm guessing). Sure, let the UN not only inspect it, but take control. I'm not sure that action would prevent malfeasance (look at history in Africa, Middle East, Haiti, Balkans), but would solve a big strategic communications issue for the US.

Posted by Col Steve at November 28, 2005 12:38 AM