Wiggle Room on Cruelty

By Joseph Margulies
Monday, July 17, 2006; A15

Last week the New York Times trumpeted what it saw as a "sweeping change" in the administration's policy toward people captured in the war on terror. The normally reserved Financial Times of London agreed, calling it "a major policy shift." Yet White House spokesman Tony Snow said it was no big deal. So what happened, and what difference will it make?

The hubbub is over a two-page memo by Gordon England, the No. 2 official at the Pentagon. His memo pledges that the U.S. military will abide by Common Article 3 of the Geneva Conventions. Among other things, Common Article 3 requires that sentences imposed on prisoners during an armed conflict be handed down "by a regularly constituted court" that provides "all the judicial guarantees which are recognized as indispensable by civilized peoples."

This is the language that torpedoed the president's military commissions. On June 29, in Hamdan v. Rumsfeld , the Supreme Court held that the conflict with al-Qaeda was governed by Common Article 3 and that the commissions established by President Bush were not up to snuff because they were not "a regularly constituted court," and even if they were, they lacked the elements of a fundamentally fair process.

But Common Article 3 also establishes the minimum standards of humane treatment for detainees. It explicitly bars "violence to life and person," "cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment." Before Sept. 11, the U.S. military had always considered itself bound by Common Article 3. But after Sept. 11, the president announced that prisoners captured in the war on terror would not be protected by the Geneva Conventions, including Article 3. In that respect, England's memo, which directs the military to "comply with the standards of Common Article 3," appears to be just the "sweeping change" suggested by the Times.

But the devil, as they say, is in the details, and important questions remain unanswered. First, England says that "aside from the military commission procedures," the U.S. military already complies with Common Article 3. Detainees in military custody, he says, have always been treated humanely. (The memo is conspicuously silent on whether the same can be said for people held by the CIA.) Since humane treatment is "the overarching requirement of Common Article 3," a formal commitment to the rule requires no change in military practice.

But we know what the administration means by humane treatment. These are the same people who said it was humane to hold a prisoner in solitary confinement with no human contact except interrogators and guards until, according to an FBI agent, he became delusional. Then it was humane to subject the same prisoner to an eight-week series of interrogations that lasted 18 to 20 hours a day. Interrogators doused him with water if he fell asleep and forced him to stand at attention for hours at a time if he did not cooperate. They made him bark like a dog and growl at pictures of terrorists, tied a leash to his neck and led him around the room, and made him perform a series of dog tricks. They forced him to wear a bra and place a thong on his head. They forcibly administered an enema. Even when his heartbeat slowed to 35 beats a minute and he was placed in a doctor's care, loud music was played in his cell to "prevent detainee from sleeping." (All of this according to the Pentagon.) If this interrogation was not cruel, humiliating and degrading, if it did not offend personal dignity, then the words have no meaning.

The second question left unanswered by England's memo has to do with a widely reported, behind-the-scenes battle between the Pentagon and senior administration officials. England's memo cites the 1992 version of the Army field manual on interrogations, FM 34-52, and says -- correctly -- that the manual complies with Common Article 3. In fact, the field manual explicitly directs interrogators to comply with the Geneva Conventions. It also orders interrogators to refrain from using any technique that would violate the rights of a U.S. soldier if it were used on him.

But what England's memo does not say is that the administration jettisoned this field manual in the war on terror and that the 1992 version is being amended. In the new manual, senior administration officials have pressed hard to let interrogators use techniques that violate Common Article 3. Senior military officers, on the other hand, have resisted this pressure. This continues a pattern set in the earliest days of the war on terror, with the administration pushing the Pentagon to adopt techniques not sought by senior military planners.

The new manual remains a work in progress. The critical question in last week's developments -- and the one that has so far escaped the notice of commentators -- is whether England's memo signals the end of this internal debate. If the administration finally concedes that interrogators cannot use techniques that violate Common Article 3, then perhaps it will give up trying to plant that power in the field manual.

But this administration does not give up power easily, and it could be that the White House will simply shift gears and claim that its long-running battle with the Pentagon was merely hypothetical -- that the interrogation techniques it has in mind for the new field manual don't really violate Common Article 3 after all. Giving interrogators the power to use them, therefore, would not run afoul of the Supreme Court's ruling.

If the administration finally gives up the attempt to use techniques that are cruel, humiliating or degrading, then we really have a change that could justify the headlines. But if not, then the announcement means nothing.

The writer, who teaches law at Northwestern University, was lead counsel in the case of Rasul v. Bush, which concerned the holding of detainees at Guantanamo Bay. He is the author of "Guantanamo and the Abuse of Presidential Power."

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