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By Julian E. Barnes
June 5, 2006
WASHINGTON -- The Pentagon has decided to omit from new detainee policies a key tenet of the Geneva Conventions that explicitly bans "humiliating and degrading treatment," according to knowledgeable military officials, a step that would mark a further shift away from strict adherence to international human rights standards.
The decision culminates a lengthy debate within the Defense Department but will not become final until the Pentagon makes new guidelines public, a step that has been delayed. However, the State Department opposes the military's decision to exclude Geneva Conventions protections and has been pushing for the Pentagon and White House to reconsider, the defense officials acknowledged.
For more than a year, the Pentagon has been redrawing its policies on detainees and interrogation, and intends to issue a new Army Field Manual, which, along with accompanying directives, represents core instructions to U.S. soldiers worldwide. The process has been beset by debate and dispute, but the decision to omit Geneva Conventions protections from a principal directive comes at a time of growing worldwide criticism of U.S. detention practices and the conduct of American forces in Iraq.
The directive on interrogations, 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 civilians last year at 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 arguments that U.S. forces follow the toughest, 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 and a former law clerk to then-Supreme Court Justice Sandra Day O'Connor. "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. It makes people think we are violating these provisions left and right."
The detainee directive was due to be released in late April along with the Army Field Manual on interrogations. But objections from several senators on other field manual issues forced a delay. Senators objected to provisions allowing harsher interrogation techniques for unlawful combatants, such as terrorism suspects, as opposed to traditional prisoners of war.
The lawmakers argue that differing standards of treatment allowed by the field manual would violate a broadly supported anti-torture measure advanced by Sen. John McCain, an Arizona Republican. McCain pushed Congress last year to ban torture and cruel treatment and to establish the Army Field Manual as the uniform standard for treatment of all detainees. Despite administration opposition, the measure passed and became law.
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 Conventions. But in 2002 President Bush suspended portions of the Geneva Conventions for captured al-Qaida 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 after Bush's 2002 order is one governing U.S. detention operations. Military lawyers and other defense officials wanted the redrawn version of the directive to again embrace Common Article 3 of the Geneva Conventions.
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 unlawful combatants or traditional prisoners of war. The protections for detainees in Article 3 go beyond the McCain amendment by prohibiting humiliation.
However, the move to restore U.S. adherence to Article 3 was opposed by officials from Vice President Dick Cheney's office and by the Pentagon's intelligence arm, government sources said. David Addington, Cheney's chief of staff, and Stephen Cambone, the defense undersecretary for intelligence, argued that it would restrict the United States' ability to question detainees.
The Pentagon tried to satisfy some of the military lawyers' concerns by including some protections of Article 3 in the new policy, most notably a ban on inhumane treatment, but steadfastly refused to embrace the actual Geneva standard in the directive it plans to issue.
The military lawyers, known as judge advocates general, or JAGs, have concluded that they will have to wait for a new administration before launching 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 anonymously 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, The Rule of War, argues that the decision to remove the Geneva reference from the directive shows that the administration intends to push the interrogation envelope.
"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 all 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 Conventions.
But top Pentagon officials now believe Common Article 3 creates an "unintentional sanctuary" that could allow al-Qaida members to avoid telling what they know to interrogators.
"As much as possible the foundation is Common Article 3. That is the foundation," the senior official said, speaking on the condition of anonymity because the new policies have not been made public. "But there are certain things unlawful combatants are not entitled to."
Another defense official said Article 3 prohibitions against "outrages upon personal dignity, in particular humiliating and degrading treatment" could be interpreted as banning well-honed interrogation techniques.
Many intelligence soldiers consider questioning the manhood of male prisoners to be an effective and humane technique. Suggesting to a suspected insurgent that he is "not man enough" to have set an improvised explosive device will sometimes elicit a full description of how he placed the bomb, soldiers say.
If Article 3 were incorporated in a directive, the Pentagon worries that detainees could use it to argue in U.S. courts that such techniques violate their personal dignity. "Who is to say what is humiliating for Sheik Abdullah or Sheik Muhammad?" the second official asked. "If you punch the buttons of a Muslim male, are you at odds with the Geneva" accords?
Military officials also worry that following Article 3 could force them to end the practice of segregating prisoners. The military argues there is nothing inhumane about putting detainees in solitary confinement so they can be questioned without coordinating their stories with others.
Still, human rights organizations have their doubts, arguing that isolating people for months at a time leads to mental breakdowns.
"Sometimes these things sound benign, but there is a reason they have been prohibited," said Jumana Musa, an advocacy director for Amnesty International. "When you talk about putting people in isolation for eight months, 14 months, it leads to mental degradation."
Jinks, the law professor, argues that Article 3 does not prohibit some of the things the military says it wants to do. "If the practice is humane, there is nothing to worry about," he said.
Defense officials said that officials with the State Department and other agencies have argued that adopting Article 3 would put the U.S. government on more solid "moral footing" and make U.S. policies easier to defend abroad.
Some State Department officials have told the Pentagon that incorporating Geneva into the new directive would show American allies that the U.S. military is following "common standards" rather than making up its own rules. Department officials declined to comment for this article about the directive or their discussions with the Pentagon.
Common Article 3 was originally written to cover civil wars, when one side of the conflict was not a state and therefore could not have signed on to the Geneva Conventions.
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 argue that 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 the conventions are customarily interpreted, they argued.
But top Bush administration officials argue that after the Sept. 11 attacks, old customs do not apply, especially to a fight against terrorists or insurgents who never play by the rules.
"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."
Julian E. Barnes writes for the Los Angeles Times.
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