The Justice Department has advised the White House that President Bush (and those who follow his orders) may contravene treaties, U.S. law and international law under the broad doctrine of "necessity."
This advice contrasts sharply with that of an earlier White House, under Lyndon Johnson, during the Vietnam War. In that war, the decision was made to employ the full powers of the commander in chief to buttress and reinforce the Geneva Conventions and the criminal sanctions under the U.S. Code that followed from these conventions. Attorney General John Ashcroft and others in the administration have suggested that the recent disclosures about abuses at Abu Ghraib prison are simply a reflection of the universal "hard side" of war. It was ever thus and will forever be is the implication. Yet the record of the U.S. military in Vietnam, not our most glorious military undertaking, suggests otherwise.
Far more attention was paid in Vietnam than in Iraq to ensuring an environment in which every American combatant understood the basic rules of the Geneva Conventions. These principles were part of universal military training, reinforced by the chain of command in the field and largely, although certainly not universally, adhered to by the troops.
The International Red Cross sought assurances in December 1964 from the U.S. and Vietnamese governments that their armed forces were abiding by the Geneva Conventions. These requests prompted a policy review that led the U.S. Military Assistance Command Vietnam to appoint a joint U.S.-Vietnamese military committee in September 1965 to work out details on the application of the Geneva Conventions in Vietnam. Every draftee and volunteer was given, during basic training, mandatory instruction in the principles of the conventions. Soldiers were tested on that training, and the results were recorded in their personnel jackets. This training was repeated at successive stages, and all soldiers arriving in Vietnam received orientation in the Geneva Conventions during their initial processing.
Every soldier also received a plastic pocket card bearing the signature of our commander in chief, Lyndon Baines Johnson. It was headed "The Enemy in Your Hands" and summarized the conventions in simple, clear language. Item No. 3, "MISTREATMENT OF ANY CAPTIVE IS A CRIMINAL OFFENSE. EVERY SOLDIER IS PERSONALLY RESPONSIBLE FOR THE ENEMY IN HIS HANDS," was followed by this unambiguous guidance: "It is both dishonorable and foolish to mistreat a captive. It is also a punishable offense. Not even a beaten enemy will surrender if he knows his captors will torture or kill him. He will resist and make his capture more costly. Fair treatment of captives encourages the enemy to surrender."
A program of instruction for all U.S. and Vietnamese military units was established in Vietnam to teach the basic rules for handling prisoners. Regulations were promulgated instructing U.S. units and advisers to identify and keep records of all captives turned over to the Vietnamese, including specifying to whom the captives were transferred.
The signed order from President Johnson in our pockets was a critical element of accountability and personal responsibility. In the event that any of us might be instructed to treat prisoners in an inhumane manner, we were in a position to recognize and refuse an unlawful order that contravened a signed direct order from the president.
There were, of course, American abuses in the handling of prisoners in Vietnam, as there were in World War II and all other wars. But U.S. soldiers who violated the policy on torture and prisoner abuse in Vietnam knew precisely where the lines were drawn, and they knew that they could not hide behind either an ambiguous Army policy or the defense that they were "just following orders." Serious departures from policy were far more prevalent in the undeclared and covert theaters of the Indochina war (Laos and Cambodia), where accountability was reduced, the lines of military authority often obscure, and external oversight from the legislative branch and from the press nonexistent.
The Defense Department has established a military environment in Iraq that is more reminiscent of those covert wars than of the overt war in Vietnam. The White House legal counsel's written opinion that the Geneva Conventions are now "obsolete" and have been rendered "quaint" diminishes accountability and personal responsibility for our soldiers in Iraq. The suggestion that the doctrine of "necessity" has broad application to our military interrogation of prisoners in Iraq is worrisome.
The Indochina war was not the U.S. Army's finest hour, but the occupation of Iraq may, in at least some respects, be remembered as one of its darkest.
The writer is a retired senior foreign service officer and a veteran of Army service in Southeast Asia. He was also a professor at the National War College. His e-mail address is firstname.lastname@example.org.