From the LA Times:
WASHINGTON — The Pentagon has decided to omit from new detainee policies a key tenet of the Geneva Convention that explicitly bans “humiliating and degrading treatment,” according to knowledgeable military officials, a step that would mark a further, potentially permanent, shift away from strict adherence to international human rights standards.
[snip]
President Bush’s critics and supporters have debated whether it is possible to prove a direct link between administration declarations that it will not be bound by Geneva and events such as the abuses at Abu Ghraib or the killings of Iraqi civilians last year in Haditha, allegedly by Marines.
But the exclusion of the Geneva provisions may make it more difficult for the administration to portray such incidents as aberrations. And it undercuts contentions that U.S. forces follow the strictest, most broadly accepted standards when fighting wars.
“The rest of the world is completely convinced that we are busy torturing people,” said Oona A. Hathaway, an expert in international law at Yale Law School. “Whether that is true or not, the fact we keep refusing to provide these protections in our formal directives puts a lot of fuel on the fire.”
This is a test:
- Do we care at all whether “the rest of the world is completely convinced that we are busy torturing people”?
- Does this represent who we, as a nation, think we are?
They aren’t trick questions. What did you answer?
I don’t want to discuss the “but that’s what they’re doing, too”. That’s not the question, because they are not Americans, are they?
We are Americans.
There are many opinions in the blogosphere on this, but James Joyner at Outside the Beltway wrote a tremendous post, which says in part (my emphasis):
Even though our enemy by no means adheres to international law, our failure to do so undermines our moral authority. This is not a small thing, whether we’re talking about sustaining support at home, building coalitions with our Western partners, or even the “battle for hearts and minds” in the Arab world. That they don’t follow the Geneva protocols does not prevent our failure to do so from being used against us for propaganda purposes.
They. Them. We are not them, and I, for one, do not want to become them, either.
Blue Crab Boulevard asks:
So, how can these protections be reconciled with the fact that the terrorists do not, and never will, follow the Conventions themselves? I think that question needs to be discussed, but for now there’s a bit too much uproar to have a lucid discussion.
They can’t be reconciled, unless we have decided that to fight them, we have to become them. Have we made this choice? Did we realize that we had?
Just how far down this road do we plan to travel, before we no longer recognize ourselves in the mirror?
But my question where is the line? What consitutes acceptable techniques? What constitutes “humiliation”? Police in this country are allowed to use many techniques including outright lying. What constitutes cruelty? It’s not as easy an answer as you might think.
Gaius,
But I don’t think it’s an easy answer. That doesn’t negate the need for some honest thought about the questions, though — including your questions in your comment, which are also good.
What is humiliation? I’ve read elsewhere that, in the al-Qaeda world, humiliation would be part and parcel of the war/terrorist equation. Does that mean, though, that we accept their definition?
I don’t know where the line is. I thought the Geneva Convention was the line… but I’ve been told that no, it’s merely a recommendation to which we are not required to adhere. Does that mean, then, that line was drawn in the wrong place? Why, then, did we accept it at all?
Sigh…. no, the answers are not easy.
Polimom, Gaius,
I agree with both of you. It’s a difficult issue, not at all suited to resolution by sound bites. The dilemma, IMHO, is caused not by the prohibition on torture, but by the very broad wording of Article 17 of the Third Geneva Convention. It states:
(Article 17): “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.”
While most, if not all, Americans would be glad to agree not to torture prisoners (whether “lawful” or “unlawful” combatants) many are reluctant to sign up for: “Prisoners . . . who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.” After all, that’s a higher level of protection than ordinary criminal suspects enjoy in most Western legal systems.
Is shouting at a prisoner under interrogation “torture”? It is certainly unpleasant. What about keeping them up past their bedtimes? Taking away their dessert? Disadvantageous treatment! Can’t do it!
In many, if not most cases, intelligence about upcoming attacks and operations will only be obtainable from captured members of the attacking organizations. It would be difficult to put all knowledge in prisoners’ heads off limits in such a blanket fashion.
It would be nice to think that common sense would be enough to answer these questions. Alas, common sense is a very rare item indeed.
An additional point is that Al Qaeda trained their members in how to use the Western legal system to their advantage. In the early days of the “War on Terror” there was some tactical advantage in injecting uncertainty into the minds of the enemy over just how they would be treated if captured. Unfortunately, the lack of specific written guidelines and policies allowed such things as Abu Gharib to happen. Thus was useful propaganda handed to the enemy. IMHO, the advantages of not having published, clear cut guidelines now outweigh the value of the uncertainty (if any) in the minds of potential battlefield prisoners. We should just publish a set of guidelines for the treatment of prisoners and be done with this issue.
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is the line drawn that we are not supposed to cross. The United States is in violation of that Convention according to the UN Committee Against Torture report that was released last month.
The US has narrowed the legal definition of ‘torture’ and has ignored the Convention. If this is the country we want to be then we need to give up all pretense of being a beacon of human rights. I posted about the US definition of torture and how it is at odds with Coonventions we have signed here and here.
We can choose to ignore Conventions that we have signed and use twisted legal arguments to justify torture, but it wont wash morally or with the rest of the world. Contrary to popular belief, the al Qaeda threat is by no means the biggest threat the United States has ever faced (WWII and the Cold War immediately come to mind as bigger and existential threats). Yet we somehow feel that in this conflict it is necessary to abandon our principles to win. Nothing could be further from the truth.
By the way, June is Torture Awareness Month. You can join Bloggers Against Torture here.
This one is just so not hard to get. I think it’s helpful to change it around a bit: Do we want to be the ones who would run into a burning building to save children—ones who would sacrifice our safety for the lives of others?
Or do we want to be the ones who would let those children burn, sacrificing others for our own safety?
I don’t think there are too awfully many Americans who advocate “torture”. The problem is the definition. It’s all very well to point to a UN judgement about the US. You know, that same UN that is currently under investigation for war crimes by the Australians. But what is needed is a clear definition of what torture IS. Sorry, panties on the head doesn’t meet that standard. As the Master points out, strict interpretation of the article gives terrorists a higher level of protection than they would receive in a criminal case. Which is absurd, is it not?
Polimom – being “culturally sensitive” about what defines humiliation really gets weird fast when you try to discuss it, doesn’t it?
Thom, I think that one is a false choice.
Gaius, when you read John Yoo’s narrow definition of torture, you slide into a problem as Joh Yoo himself did. He conceded in December 2005 that by his interpretation there is nothing in the law that can prevent the President from ordering the crushing of a child’s testicles. I would have to say that crushing a child’s testicles is torture.
The UN Convention has been agreed to by the United States and the UN Committee Against Torture is a very respected body. Feel free to read their report and the American explanations like if Americans torture outside the US it cannot be called “torture”.
The definition of torture is rather clear. You can choose to narrow it if you like. And there was plenty more at Abu Ghraib than panties on heads. If you have any doubts I’d be happy to link you to some pictures to remind you.
Let’s look for a sec at “cruel and unusual punishment” – a domestic Criminal Justice term.
I posted about it not long ago, with the “injection might cause pain during administration of the death penalty” cases here in Houston. There was a lot of debate.
Then there’s the recent case (is it Ohio?? not following it) where the transgendered inmated needs a full sex change operation to become, fully, his psychological gender. The discussion was whether not providing the operation constituted “cruel and unusual punishment” because of the psychological ramifications.
We haven’t successfully defined cruel and unusual, because subjective terminology is problematic, every time.
I hear what Mash is saying, and I’m sure somebody will tell me why I’m wrong, but I don’t think torture is as hard to define as “humiliation” or “degradation” – which is the section left out of the Pentagon guidelines.
So – in terms of Islam, and/or Iraqi culture (for instance): dressing a man as a woman would seem to be pretty humiliating, in context. Is that a violation?
OTOH, is, say, urinating on a prisoner humiliating? It seems to me (imho) that such a thing would be reprehensible everywhere.
Are they torture? Not, probably, as I would define it. Is there a difference between the two? Does one bother us and not the other?
I think there is a vast area where different interpetations yield completely different results. Cruel and unusual is one. Humiliation is another. I am not defending Abu Graib, Mash. There were bad actors there who were investigated and punished.
Put Thom’s choice in a different light. Say you have a burning building with women and children in it. There is absolutely no other way into that building but through one door. That door cannot be broken down physically and it is locked. The only person who knows where the key to that door is is the same person who set the fire. You have that person in your custody.
What do you do?
Polimom, the Convention against Torture defines ‘torture’ as a subset of Cruel and Inhuman treatment. So, yes, there is treatment banned beyond torture. Often, when people speak of ‘torture’ they are using the short-hand to represent all acts banned by the Convention. The reason the Convention also includes terms other than torture is so that the definition given in Article I paragraph 1 is not used by countries to try to twist and narrow it and get away with acts by defining them as not ‘torture’.
Now this is the important part. You cannot take the United States rejecting the ‘cruel and inhuman’ part on it own. It works together with the US narrowing of the definition of torture. By narrowing the definition of torture, and rejecting ‘other cruel and inhuman’ acts, the US then argues that what it does is not torture and thus acceptable.
The real cleverness here is the narrowing of the ‘torture’ definition. That’s where people should be focusing.
The US has narrowed it so that only ‘prolonged’ pain that leads to either ‘organ failure or death’ is considered torture. That is not the Convention’s definition of torture.
What the US has done is, essentially, added its own ‘signing statement’ to the Convention and said that we will interpret torture the way we like and there is nothing you can do about it. In fact, in the 2002 Torture Memo, John Yoo pointed out that since the US does not acknowledge the ICJ (International Court of Justice), there is no international body that can enforce US violations of the Convention. Therefore, in essence, the US can violate the Convention without any consequences.
When we are arguing about whether ‘humiliation’ constitutes torture, we are at the wrong end of the spectrum. The real issue is whether anything short of permanent damage such as organ failure or death constitutes torture. The US says that it does not.
Incidentally, I forgot to point out an obvious but very important fact. The acts the US is claiming is not torture violate US domestic statutes and are considered crimes. That is why the US holds detainees overseas and not on US soil. US courts do not have jurisdiction and since the US is not party to the ICJ there is no international body that has jurisdiction either.
Kind of clever in its cruelty.
Citation for the report that the US is in violation, please. Citation for your assertion that the US is narrowing definitions as well.
Gaius, here are the links:
– UN Committee Against Torture
– The Committee’s report on the United States
– The US written response to the Committee report which asserts that the US definition is narrower
– My post on the report and US response
– 2002 Justice Dept. Torture Memo written by John Yoo that narrows definition of torture
– 2005 defense of the Torture Memo by John Yoo
– My post on John Yoo’s narrowing of the torture definition
I think I got all of it in there.
Gaius
My story is not meant to show an exact choise—it’s meant to highlight the bizarrely overlooked ingredient that it is how we view ourselves that is possibly the most important reason to not condone torture. Hence my question “Do we want to be…” not “Do we want them to think…”
And your most-extreme example, the ticking bomb scenario so often used by Bill O’Reilly and Rush Limbaugh and others to attempt to justify the unjustifiable events at Abu Ghraib—it is fearmongering, period. We do not make rules for ourselves based on such extreme examples. We make rules and laws based on reasoned restraint, and we deal with the extremes as they come. (There have been times when we did make laws based on your reasoning. Japanese internment camps was one of those times.)