Thursday, July 26, 2007
Marty Lederman
The President's Executive Order last week -- ostensibly construing our obligations under Common Article 3 of the Geneva Conventions, including the absolute prohibition on "cruel treatment and torture" --
conspicuously and intentionally failed to prohibit the CIA's "enhanced" interrogation techniques, including stress positions, prolonged isolation and/or sleep deprivation, and threats of harm to the detainee and his family. Vague reports suggest that waterboarding and hypothermia are now out-of-bounds, but the President would not even confirm that much.
This interpretation of our treaty obligations is so transparently implausible that even Robert Turner, who has defended almost all of the Administration's aggressive legal arguments in the conflict against Al Qaeda,
today forcefully dissented from this mangling of the Geneva Conventions. Together with President Reagan's appointed Marine Corps commandant P.X. Kelley, Turner writes:
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. . . . The Geneva Conventions provide important protections to our own military forces when we send them into harm's way. Our troops deserve those protections, and we betray their interests when we gratuitously "interpret" key provisions of the conventions in a manner likely to undermine their effectiveness. . . . In a letter to President James Madison in March 1809, Jefferson observed: "It has a great effect on the opinion of our people and the world to have the moral right on our side." Our leaders must never lose sight of that wisdom.
To the same effect, at the Senate Judiciary hearing this week, Senator Durbin urged the Attorney General to consider the ramifications of the Executive Order for armed conflicts in the future -- in particular, for the well-being of the numerous U.S. personnel who are not entited to POW protections. He asked the AG, in particular, whether it would be legal for a foreign government to subject nonuniformed U.S. personnel to five particular interrogation techniques -- "painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution."
moreOn edit, the article is excellent, but this
blog post points out a nugget that gives the Repubs a little cover:
...Yet we did not find it necessary to compromise our honor or abandon our commitment to the rule of law to defeat Nazi Germany or imperial Japan, or to resist communist aggression in Indochina. On the contrary, in Vietnam -- where we both proudly served twice -- America voluntarily extended the protections of the full Geneva Convention on prisoners of war to Viet Cong guerrillas who, like al-Qaeda, did not even arguably qualify for such protections.
I'd have to take issue with that last bit - the Geneva Conventions make exceptions on torture for no one, regardless of their status.
Torture is not allowed!
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