Bad Apples: Deleting Geneva from the Army Field Manual

The Los Angeles Times reports that the Pentagon is deleting anti-torture language from the Army Field Manual that is drawn from the Geneva Conventions.

The Geneva Conventions, if you do not know, were treaties instituted following the atrocities, degradations and mistreatment seen during World War 2 that were created in large part by America's leadership in creating international legal rules and standards for the treatment of prisoners of waar and captured stateless combatants. The United States continually chides other nations for failing to meet international legal standards, for example, in the yearly State Department reports and in the case for war brought against Saddam Hussein. Nevertheless, reports 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.

. . . [T]he State Department fiercely opposes the military's decision to exclude Geneva Convention protections and has been pushing for the Pentagon and White House to reconsider, the Defense Department officials acknowledged.

. . .

The directive on interrogation, a senior defense official said, is being rewritten to create safeguards so that all detainees are treated humanely but can still be questioned effectively.

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."

You may also remember that the recent McCain anti-torture bill pegged standards of behavior to....guess what?

That's right, the Army Field Manual!:

McCain last year pushed Congress to ban torture and cruel treatment and to establish the Army Field Manual as the standard for treatment of all detainees. Despite administration opposition, the measure passed and became law.

Convenient time to make this deletion, eh?

For decades, it had been the official policy of the U.S. military to follow the minimum standards for treating all detainees as laid out in the Geneva Convention. But, in 2002, Bush suspended portions of the Geneva Convention for captured Al Qaeda and Taliban fighters. Bush's order superseded military policy at the time, touching off a wide debate over U.S. obligations under the Geneva accord, a debate that intensified after reports of detainee abuses at Guantanamo Bay, Cuba, and at Iraq's Abu Ghraib prison.

Among the directives being rewritten following Bush's 2002 order is one governing U.S. detention operations. Military lawyers and other defense officials wanted the redrawn version of the document known as DoD Directive 2310, to again embrace Common Article 3 of the Geneva Convention.

That provision — known as a "common" article because it is part of each of the four Geneva pacts approved in 1949 — bans torture and cruel treatment. Unlike other Geneva provisions, Article 3 covers all detainees — whether they are held as unlawful combatants or traditional prisoners of war. The protections for detainees in Article 3 go beyond the McCain amendment by specifically prohibiting humiliation, treatment that falls short of cruelty or torture.

The JAGs come off looking pretty good:

The military lawyers, known as judge advocates general, or JAGs, have concluded that they will have to wait for a new administration before mounting another push to link Pentagon policy to the standards of Geneva.

"The JAGs came to the conclusion that this was the best they can get," said one participant familiar with the Defense Department debate who spoke on condition of anonymity because of the protracted controversy. "But it was a massive mistake to have withdrawn from Geneva. By backing away, you weaken the proposition that this is the baseline provision that is binding to all nations."

Derek P. Jinks, an assistant professor at the University of Texas School of Law and the author of a forthcoming book on Geneva called "The Rules of War," said the decision to remove the Geneva reference from the directive showed the administration still intended to push the envelope on interrogation.

"We are walking the line on the prohibition on cruel treatment," Jinks said. "But are we really in search of the boundary between the cruel and the acceptable?"

The military has long applied Article 3 to conflicts — including civil wars — using it as a minimum standard of conduct, even during peacekeeping operations. The old version of the U.S. directive on detainees says the military will "comply with the principles, spirit and intent" of the Geneva Convention.

This all goes back to the Bush Administration's key misinterpretation of the Conventions when Bush's lawyers (Yoo, Gonzalez, Bybee) concocted their various apologies for why torture of persons captured in Afghanistan isn't prohibited:

In his February 2002 order, Bush wrote that he determined that "Common Article 3 of Geneva does not apply to either Al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and Common Article 3 applies only to 'armed conflict not of an international character.' "

Some legal scholars say Bush's interpretation is far too narrow. Article 3 was intended to apply to all wars as a sort of minimum set of standards, and that is how Geneva is customarily interpreted, they say.

We all know what is going on. It's not just a few bad apples who are responsible for acts of torture and affronts to human dignity:

"The overall thinking," said the participant familiar with the defense debate, "is that they need the flexibility to apply cruel techniques if military necessity requires it."