Notes from a Fiery Nest

A post by theweaselking pointed at a somewhat left-biased article about torture of prisoners in Cuba (I mean, consider the source!), and also included a link to the pertinent FBI survey notes.

This prompted me to go a-hunting for the "official rules" that are in force regarding treatment of prisoners. Here are some of the interesting things that came up, but I never did find detailed information: it seems that Rumsfeld classified it, and that's where it still is.

• US Army Field Manual 34-52: Intelligence Interrogation. See in particular: Chapter 9: Low-Intensity Conflict and Appendix H: Approaches. Also worth reading is Appendix J: 1949 Geneva Conventions (selected), particularly the very last one cited. Note the phrase "protected persons"; it comes up in interesting places.
• US Military Law: Punishment prohibited before trial. This is in the context of discipline of US Military personnel, but just about every article except this one specifies "person subject to this chapter" (emphasis mine). This can thus be understood to apply to captives of all designations.
• US Army Field Manual 27-10: The Law of Land Warfare. See in particular Chapter 3: Prisoners of War and Chapter 5: Civilian Persons.

Now, all this seems generally okay, until we bring in the political context. Despite the US Forces referring to captivity as "internment", they don't receive anything like the treatment described in Chapter 3 of FM 27-10. The analysis which best sums up the problem is, perhaps unsurprisingly, by a military lawyer: Lieutenant Colonel Thomas E. Ayres. The whole text, with extensive footnotes, of his article published in Parameters, '“Six Floors” of Detainee Operations in the Post-9/11 World', is available online, and is well worth the time required to read it. While not directly condemning the Administration, he conveys clearly the lack of clear guidance for treatment of incarcerated persons which has been created by that Administration's declarations on their status. Here are the bits which, in my view, capture the essence of the problem, together with the Administration's method and intent in creating it:

... President Bush stated that he had met with his national security team and decided the detainees were illegal combatants and would “not be treated as prisoners of war.”

This position confirmed the predilection to avoid being bound by the constraints of the Geneva Conventions in this war with a new kind of enemy. ... The memo concluded that considering “our values as a nation ... as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The President’s memorandum made no mention of the Administration’s position with respect to adherence to the Convention Against Torture, perhaps never anticipating that the US position and values regarding that convention would be brought into question.

The Administration did not similarly articulate its position on the legal status of the forces faced in Iraq, even well into the conduct of Operation Iraqi Freedom. ... [C]oalition forces have continuously engaged an array of insurgents and foreign fighters, such as Zarqawi’s “al Qaeda in Iraq,” whose status under the Geneva Conventions is, at best, problematic. ... Following the Abu Ghraib scandal, the Administration stated, “The President made no formal declaration with respect to our conflict in Iraq because it was automatic that Geneva would apply. . . . The war in Iraq is covered by the Geneva Conventions, so our policies there must meet those standards, in addition to the torture convention.” However, when an official spokesperson was directly asked about Zarqawi’s status in Iraq, he could respond only that it was a “very interesting question.”

Significantly, the Administration appeared determined not to apply the Geneva Conventions to the Taliban and al Qaeda in order to preserve US options and flexibility in dealing with the detainees. Captured terrorists and their sponsors likely possess information which could prevent “further atrocities against American civilians,” but Geneva III’s strict guidance with respect to treatment of POWs does not facilitate attempts to obtain that knowledge or information. US officials further recognized that granting POW status to Taliban and al Qaeda members would put US interrogation agents at risk of prosecution, because any “outrages against personal dignity,” as prohibited by common Article 3 of the Conventions, could be domestically prosecuted as a war crime. There was also an explicit recognition that designation of Taliban and al Qaeda as POWs would greatly restrict options with respect to their ultimate disposition. By law and custom, POWs are normally repatriated and released from confinement at the cessation of hostilities. However, US officials acted under the presumption that the ideological terrorists at issue must not be subject to release on those terms; rather, they should be subject to incarceration indefinitely or for a term of years determined by a trial for their crimes. By not designating Taliban and al Qaeda detainees as POWs, the Administration retained several means whereby they could ultimately be incarcerated and tried—such as military tribunals, domestic criminal courts, international war crimes tribunals, even as POWs at court-martial. Indeed, the status determination arguably provides the framework by which terrorists could be turned over, extradited, or “rendered” to foreign nations that might not be as punctilious and restrained with respect to the Convention Against Torture. In the final analysis, the Administration has sought to keep its options open, refusing to be bound by the confines of strict adherence to Geneva or the traditional criminal approach.

Read that last sentence again... it's an important one. In essence, he's saying that the Administration has deliberately created and systematically exploited a legal loophole where the legislative and judiciary branches of government can't apply any checks on the executive's actions.

What LCol Ayres is proposing in this article is a correction of that situation. It will be interesting to see whether this excellent suggestion is acted upon or simply swept under the carpet by those above him.