A couple of weeks ago, I read a tirade based on an op-ed piece that appeared in the Washington
Post. The authors of this post, Paul X. Kelley and Robert F. Turner, accuse the President of issuing an executive order that:
...has compromised our national honor and that may well promote the commission of war crimes by Americans and place at risk the welfare of captured American military forces for generations to come.
What evil lurks in this executive order?
Well, according to Kelley and Turner:
The order declares that the CIA program "fully complies with the obligations of the United States under Common Article 3," provided that its interrogation techniques do not violate existing federal statutes (prohibiting such things as torture, mutilation or maiming) and do not constitute "willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency."
OK, that sounds pretty reasonable to me, what's the downside?
In other words, as long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not "done for the purpose of humiliating or degrading the individual" -- even if that is an inevitable consequence -- the president has given the CIA carte blanche to engage in "willful and outrageous acts of personal abuse."
It is firmly established in international law that treaties are to be interpreted in "good faith" in accordance with the ordinary meaning of their words and in light of their purpose. It is clear to us that the language in the executive order cannot even arguably be reconciled with America's clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person.
That's all I can say.
I'm not a lawyer, so I'm not sure if this is the sort of loophole that would actually work, even if the executive order were actually phrased the way it's presented in the op-ed piece.
The Post was kind enough to link to the executive
order in question, so I went and read it.
It covers a couple of issues.
On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.
Nevertheless, the CIA Detention and Interrogation Program (DIP) will extend certain protections to detainees anyway.
The executive order states that detainees will not be subject to:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual
So, in context, we see the clause that Kelley and Turner object to is part of a list of forbidden practices. Indeed, it has the appearance of being a catch-all. It covers a number of acts, such as the abuses committed at Abu Ghraib, which may not have run afoul of parts (A) through (D). And then, for good measure, part (F) bans treatment that is normally not considered objectionable, but might be so for members of certain religions. (E.g., bacon for breakfast.)
So, my "good faith" reading of these clauses, "in accordance with the ordinary meaning of their words and in light of their purpose", is that the order is designed to make it as difficult as possible to mistreat detainees. Clauses (A) through (F) seem designed to rule out, as much as possible, ways of getting around the rules. I believe, in order to get from this order to Kelley and Turner's statement that:
...as long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not "done for the purpose of humiliating or degrading the individual" -- even if that is an inevitable consequence -- the president has given the CIA carte blanche to engage in "willful and outrageous acts of personal abuse."
you have to torture and abuse the plain intent of the document.
(So why does section (E) not ban all personal abuse, even if the intent is not to humilate? Because there are lots of widely-accepted practices which can easily be held to be humiliating for a detainee.
Strip-searches and cavity searches take place in prisons all the time, and I imagine detainees are also subject to them. Medical exams, even fairly non-invasive ones like my physical last month, involve a certain amount of exposure and close contact that could be interpreted as humiliating. I read section (E) as keeping the burden of proof on the detainee to show that any alleged humiliation is indeed gratuitous and not the inevitable consequence of some legitimate procedure. Otherwise, a detainee could tie things in knots by simply declaring anything at all "outrageously humiliating".)
Just to make matters worse for Kelley and Turner's case, the executive order also provides that:
...I hereby determine that Common Article 3 [of the Geneva Conventions] shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
In other words, if Kelley and Turner are serious in the charges they're leveling, they're stating that the Geneva Convention Relative to the Treatment of Prisoners of War provides inadequate protection for detainees at Guantanamo Bay and elsewhere.
Not only is the Geneva Convention inadequate, it remains inadequate in conjunction with U.S. Code bans on torture, murder, cruel and inhuman treatment, outrageous acts of personal abuse, and religious denigration.
The way I read this, Kelley and Turner are relying on a tortured interpretation of this executive order as an excuse to throw a hysterical fit over the Evil Bush Administration. As with certain other people I've read, they are not motivated by opposition to torture, but by hatred George W. Bush. In this case, no amount of protection for detainees will ever be seen as sufficient because it's being administered by Bush.