Torture

Torture & the Senate:

Greyhawk at the Mudville Gazette noticed that the Army leads the way on human rights, at least as far as the US Senate is concerned.

Interesting that in responding to claims that the Army has failed to provide guidance to soldiers the Senate has endorsed the published Army guidance to soldiers as the definitive response.

In other early media coverage, both the AP and Knight-Ridder have defined the measure as "a rebuke to the White House."

A DoD note on variation from FM 34-52 here. Explicit departures were authorized here. Beatings and other severe punishments were never authorized.

It is not an accident that the Senate finds in the military the chiefest defenders of the Conventions. The military is not the only organization that engages in interrogations in serious matters. However, it has something not present at the CIA or FBI: roots in a culture of honor that date back centuries. The FBI was formed under Hoover, and its roots are those he planted. The CIA didn't even exist until after the second World War. It quickly abandoned its commando roots, and became an organization of pure spies.

In 1949, however, with the world's ugliest war just behind them and every reason to expect an even worse one to come, military men and political leaders who had themselves been military men sat down to try to reinforce the walls that had crumbled so badly. They remembered the firebombings of Dresden and Tokyo, the Blitz, the horrors of Burma, and much more. They looked forward to a possible day when nuclear weapons might be fielded, or Soviet tanks roll across Europe. Against both the backdrops, the revision and extension of the Geneva Conventions seems like a small thing. Nevertheless, it has held. These are the rules of chivalry in war, in which all American fighting men are trained to this day.

That same field manual was where I looked for information, back when the news of Abu Ghraib was first breaking in the press. In those dark days, I was arguing in favor of preserving the Geneva Conventions. I still argue for it. The Army Field Manual, I noted, lists the relevant ones in an appendix.

What the Conventions seek to accomplish is to protect the innocent during wartime, as much as can be done. They do this by creating three categories. They have specialized legal names, but what they amount to is this: warriors, noncombatants, and bandits. Warriors are required to protect the noncombatants, in part by not taking refuge among them or pretending to be them. In return, if captured they are to be treated with civility even by their enemies. Noncombatants are to be protected. Bandits -- those who use the war itself, or the rules, as a means to advance their own agenda -- are to be destroyed.

As time passed, foolish men without understanding joined with cunning men of evil intent. The United Nations fell under their sway, and as a living organization, has become a force that defends tyrants, blocks attempts to arm peoples facing genocide, and spreads corruption. These same men also twisted the Geneva Conventions. Using language that sounded kind but masked a harmful intent, in 1977 new protocols were added to the Conventions. They extend to some several groups that were previously 'bandits' the protections due to warriors, even though they may hide under the cover of civilians.

The United States is not party to these. Nor should we be. They undermine the protection of noncombatants, which is the purpose of the Conventions. They blur lines best kept clear.

Today, many who think of themselves as well-meaning are likewise undermining the protection of the noncombatants. By extending the protections due to warriors onto criminals, you are extending the status of warriors onto the criminals. The logic of the Conventions requires that the innocent and the righteous be protected, and the vicious be destroyed. Protecting the evil was not part of the plan. It undermines the plan.

INTEL DUMP is opposed to the Senate's law on the grounds that the particular law is foolishly written. He notes that the Field Manual isn't nearly specific enough to be used as a source for a legal text, and adds:

Where the problem lies is in ensuring that the technique as used in the approach meets appropriate legal standards. The cure for that is not Congressionally-designed rules, but rather an architecture that places oversight and control points to ensure that techniques used during an approach are appropriate. The Army's getting there (all the major interrogation facilities include organic legal assets) and a Congressional push to enhance such an architecture is a better approach.

Froggy is opposed to it on the grounds that it will compromise effectiveness. His approach seems to be that scaring the hell out of people isn't torture. This sounds like an approach that would tend to blur into real torture at the margins ("You're just going to scare him, right?" "Pain is scary."). Special Operators, however, do their "operating" at times and in places when the support structure for the Conventions is not available, and under conditions of extreme danger in which the ethical issues are different. In ethics, a decision cannot be immoral when you have no other reasonable choice. That is something a court martial would consider, should it come up.

The Senate is acting well in attempting to reinforce the adherence to the Conventions. It is acting badly in enacting a poorly-written law that is likely to confuse the issue rather than clarify it. It is also acting badly by further blurring the lines that the Conventions drew between warriors and bandits.

Like Senator McCain, I want -- and I believe the military wants -- an America that is morally better than any foe it may meet. I think real strength rises from that, as he himself demonstrated in the POW camps. It has been my experience that there is no stronger defender of the Geneva Conventions of 1949 than the US military, and for good cause. They were written by brothers in arms, who understood and shared the same ancient code of honor.

Senator McCain is wrong, however, to attempt this legislation. Being morally better than our foes means more than refusing to do violent things. It means taking moral issues seriously. We have to recognize that, in life generally and in war particularly, you get more of what you successfully protect and less of what you successfully punish. We must keep an eye toward protecting the weak and the innocent, as well as the honorable and the just. We must work harder to punish the cruel and the wicked -- among our own forces, when they appear, and among the enemies of civilization whom we fight.

We must keep the lines clear between them. It is our enemy, not us, who benefits from the loss of clarity.

UPDATE: Greyhawk resolves the question I wondered about in the comments. McCain's law makes the Field Manual the law of the land, and 'doesn't set it in stone,' but allows the Army to revise it at will.

This amendment would establish the Army Field Manual as the standard for interrogation of all detainees held in DOD custody. The Manual has been developed by the Executive Branch for its own uses, and a new edition, written to take into account the needs of the war on terror and with a new classified annex, is due to be issued soon. My amendment would not set the Field Manual in stone – it could be changed at any time.

Emphasis added, and it needs to be added. Am I to understand that the Senator intends to delegate to the Executive branch complete power to rewrite American laws governing torture and detainees, and also classify those laws?

Are we to believe, Senator, that this is the road to the moral high ground?