Ambiguity (part I)

by Katherine

(5th in a series. Previous posts: 1, 2, 3, 4)

One of the main arguments I've heard lately for amending the War Crimes Act is that Common Article 3's prohibitions against "humiliating and degrading treatment" and outrages upon personal dignity" are too vague and ambiguous for interrogators to follow, leaving our troops at risk of prosecution if they ask terrorists embarrassing questions.

In fact, the U.S. military knows perfectly well how to apply Common Article 3. They know because they have applied it (as a matter of binding, customary international law rather than treaty obligation) in every war we fought between 1949 and 2001. Army Field Manual 34-52 actually recommends that we exceed its requirements [CORRECTION: THIS LINK & QUOTE ARE ACTUALLY QUOTE FROM THE 1987 FIELD MANUAL, NOT THE CURRENT VERSION--SEE UPDATE BELOW]:

insurgent captives are not guaranteed full protection under the articles of the Geneva Conventions relative to the handling of EPWs. However, Article 3 of the Conventions requires that insurgent captives be humanely treated and forbids violence to life and person -- in particular murder, mutilation, cruel treatment, and torture. It further forbids commitment of outrages upon personal dignity, taking of hostages, passing of sentences, and execution without prior judgment by a regularly constituted court.

Humane treatment of insurgent captives should extend far beyond compliance with Article 3, if for no other reason than to render them more suceptible to interrogation. The insurgent is trained to expect brutal treatment upon capture. If, contrary to what he has been led to believe, this mistreatment is not forthcoming, he is apt to become psychologically softened for interrogation. Furthermore, brutality by either capturing troops or friendly interrogators will reduce defections and serve as grist for the insurgent's propaganda mill.

Special care must be taken in handling insurgent suspects, for their degree of sympathy with the insurgency usually is not readily apparent. Improper handling of such persons may foster sympathies for the insurgency or induce them to remain passive at a time when the host country requires active support from its citizens.

(ht: Marty Lederman--by the way, I promise that this series will eventually do more than shamelessly steal from Lederman’s work, but as you’ll see, the next two posts mainly go over ground he’s already covered.)

The Army Field Manual also provides detailed, specific guidance about the sorts of interrogation techniques one can use without violating any portion of the Geneva Conventions.  The McCain Amendment requires the Pentagon to apply the Field Manual to all of its interrogations, stating that "No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation." 

Based on these facts, there is no need for any confusion about how the military should apply the prohibition on "humiliating and degrading treatment," and no need for military interrogators to fear war crimes prosecutions for conduct that was legal until a few weeks ago. The Field Manual already shows us how to comply with Common Article 3 and then some, and the military is already required to follow it. (See Gordon England’s recent directive on Geneva for confirmation of this. England states that "the following are consistent with the standards of Common Article 3: U.S. Army Field Manual 34-52, 'Intelligence Interrogation,' September 28, 2002.")

The McCain Amendment did not prevent the administration from changing the Field Manual, though, and they are working on revisions right now.  The Los Angeles Times reported last month that the new Field Manual and accompanying directives would not ban all “humiliating and degrading treatment,” contrary to military JAGs’ wishes. The usual suspects—Cheney, Addington, Cambone—successfully argued that "common Article 3 creates an 'unintentional sanctuary' that could allow Al Qaeda members to keep information from interrogators," and that "'there are certain things unlawful combatants are not entitled to,'"such as the prohibition on humiliating and degrading treatment. 

I think Hamdan takes any authorization to violate Common Article 3 off the table, but the Field Manual is still being revised. I have no idea what the final version will look like, obviously. It is possible that the Defense Department could define "humiliating" and "degrading" as narrowly as it has defined "humane" and "torture" in the past.  It is also possible that DoD will authorize specific techniques that a court would be likely to conclude violated Common Article 3. Both of these things would leave soldiers confused and potentially vulnerable to prosecution for techniques they believe are legal. I find it pretty unlikely that we would prosecute soldiers who obeyed the Field Manual, given the political ramifications and potential due process concerns, but it's possible.

If that happens, though, it won't be because Hamdan left the military without any rules on how to conduct interrogations without violating Common Article 3.  It will be because the administration deliberately changed the rules in the Field Manual.

UPDATE:

As I noted above, I goofed. The quote recommending that U.S. troops exceed the standards of Common Article 3 is from the 1987 version of the field manual, not the current version. Here is a link to the current version (warning: very large PDF). It seems that chapter 9 of the 1987 field manual was dropped, and instead there's a new manual the same topic, FM 100-20. I haven't had time to fully review 100-20 and see what it says about Common Article 3--and no matter what it said, the McCain Amendment refers only to 34-52. I really apologize for the error. 

I do think that even without that passage, if soldiers follow the current Field Manual as required to by the McCain Amendment, they can be confident that they will not be violating Common Article III. I base this partly on the England memo (quoted above); partly on the JAGs' testimony before the Armed Services Committee last week; and partly from statements like this from the current version of 34-52 (p. 15 of PDF):

While using legitimate interrogation techniques, certain applications of approaches and techniques may approach the line between lawful actions and unlawful actions. It may often be difficult to determine where lawful actions end and unlawful actions begin. In attempting to determine if a contemplated approach or technique would be considered unlawful, consider these two tests:

• Given all the surrounding facts and circumstances, would a reasonable person in the place of the person being interrogated believe that his rights, as guaranteed under both international and US law, are being violated or withheld, or will be violated or withheld if he fails to cooperate.
• If your contemplated actions were perpetrated by the enemy against US PWs, you would believe such actions violate international or US law.

If you answer yes to either of these tests, do not engage in the contemplated action. If a doubt still remains as to the legality of a proposed action, seek a legal opinion from your servicing judge advocate.

(It is of course possible that JAGs would give the troops bad advice, but there is no standard that guards against that possibility.)

Sorry again for the confusion.

Comments

[Jesurgislac]

Both of these things would leave soldiers confused and potentially vulnerable to prosecution for techniques they believe are legal. I find it pretty unlikely that we would prosecute soldiers who obeyed the Field Manual, given the political ramifications and potential due process concerns, but it's possible.

Given that under the present system, murdering by torture an Iraqi prisoner of war is punished by 60 days of barrack confinement and a $6000 fine, it would hardly matter very much to soldiers if they were prosecuted - providing no photographs of their crimes get out to the general public.

[OCSteve]

Based on these facts, there is no need for any confusion about how the military should apply the prohibition on "humiliating and degrading treatment," and no need for military interrogators to fear war crimes prosecutions for conduct that was legal until a few weeks ago

I still disagree, mainly because "humiliating and degrading treatment" is entirely a cultural, religious, and personal issue. It is the individual that gets to decide what is and is not "humiliating and degrading treatment". It provides a perfect vehicle for captives to further exploit their main advantage over us: that we have to follow the rules while they have no such limitations.

I’m repeating myself, but if I am the detainee:
-I find white cotton sheets to be degrading. Martha Stewart 300 thread count laundered in Downy is OK.
-My religion requires me to smoke cigarettes and drink large quantities of beer on a daily basis. It is a mortal sin for me not to have at least one conjugal visit weekly (from the closest escort service). Religious services are conducted via a cable channel you call “ESPN”. The Grand Phooba (ultimate religious authority) has issued a proclamation that this is so.
-I am deeply humiliated being interrogated by any male. Only scantily clad females are acceptable.
-Anything else is "humiliating and degrading treatment" to me personally, and thus a war crime.

Yes, of course I am being facetious. But surely you can see the potential here to further exploit our main weaknesses. Terrorists have a training manual on how to act in captivity. How long do you think it will be before it is updated to incorporate new strategies specifically exploiting these changes?

I have no problem if some international body wants to draw up a list of what reasonably constitutes "humiliating and degrading treatment" across all cultures and individuals. Give these folks a reasonable standard that can be applied to everyone equally. As it is, the rules are going to be something like: “Well I can do A, but not B or C when I am interrogating this Pakistani, but with the Sunni guy I have to remember that A is off the table, and with the Shia guy B could get me life imprisonment.”

It is too ambiguous.

[Phil]

I have no problem if some international body wants to draw up a list of what reasonably constitutes "humiliating and degrading treatment" across all cultures and individuals.

All cultures and individuals aren't identical to each other, on the big stuff, let alone the finer points. If they were, your type wouldn't whine like little bitches about "multiculturalism."

It is the individual that gets to decide what is and is not "humiliating and degrading treatment".

Well, no, it isn't, as has been adequately explained to you previously.

[Gary Farber]

"It is the individual that gets to decide what is and is not 'humiliating and degrading treatment'."

No, really, the U.S. armed forces, and their JAGs are perfectly capable of coming up with their own rules.

You seem really stuck on this point, OCSteve, and there's no good reason I can see to be. No one is saying, besides you, that al Qaeda or its enthusiasts have to be granted consultation rights on this issue. That's just wrong.

The DoD (or Congress) draws up specific guidelines on what is and isn't "humiliating and degrading treatment."

End of story.

[OCSteve]

If they were, your type wouldn't whine like little bitches about "multiculturalism."

Wow. Tough counterpoint. I concede, being a whiny little bitch and all…

The DoD (or Congress) draws up specific guidelines on what is and isn't "humiliating and degrading treatment."
End of story.

Sorry – again, not. What is humiliating and degrading to one is laughable to another. If you tore up a bible in front of me and flushed the pieces down the toilet I would be pissed only if you made me late for chow. How can Congress say what I do or do not find humiliating? That is strictly based in my upbringing – Congress or the DoD knows squat about that. Can you honestly say that Congress gets to decide what is humiliating or degrading to you?

[Phil]

If you tore up a bible in front of me and flushed the pieces down the toilet I would be pissed only if you made me late for chow.

And yet exactly that was done in training interrogators, for very obvious reasons.

[OCSteve]

To be clearer (hopefully) – here is my point:

The E-6 interrogator should not be expected to memorize and correctly implement the cultural, religious, and personal “hot buttons” of every individual they may encounter as part of their assigned tasks. To expect that in an international, multi-religion, and all around culture-of-the-victim societies is insane. Give these folks some clear guidelines – then, if they violate them, they are wrong and prosecute them. I am not saying they are faultless – I am saying they had crappy guidelines to begin with and this BS only confuses things.

Degradation and humiliation are personal and cultural by definition. This language is ambiguous and open to abuse - period. It is “feel good” crap with no defined boundaries

[Gary Farber]

"Can you honestly say that Congress gets to decide what is humiliating or degrading to you?"

Why would Congress care about my opinion?

This is ridiculous; Congress doesn't write guidelines, and neither does the DoD, by consulting prisoners about how they feel.

"Degradation and humiliation are personal and cultural by definition."

Who cares? One writes objective rules, and that's that, and what a prisoner feels about it is as irrelevant as what any prisoner feels about the conditions of prisoner treatment.

This is true no matter who the prisoner is. What they think is irrelevant. That some will disagree doesn't matter. I don't know anyone who is arguing that it should.

[Gary Farber]

Oh, and the "your type wouldn't whine like little bitches" addressed to you, OCSteve, was way out of line, IMO.

[Jesurgislac]

OCSteve: The E-6 interrogator should not be expected to memorize and correctly implement the cultural, religious, and personal “hot buttons” of every individual they may encounter as part of their assigned tasks.

You're shoving three things together that don't make sense.

Why shouldn't an interrogator be expected to memorize the cultural and religious "hot buttons" of every individual they are expected to interrogate? Do you think that Americans can't be expected to memorize that much information? (I disagree.) I don't understand what you mean by "implement" - but memorize, sure, why not? What's your problem with Americans being expected to memorize useful and necessary information? Again, do you think Americans just aren't capable of memorization? I'm okay with Americans being given a crib sheet to consult if they really can't remember stuff, but most people are better at remembering things than they think they are, if they're given the right training.

If interrogation is important, the right training should be given. If interrogation is unimportant, why's it being done?

Personal "hot buttons" - well, if something is an unexpected personal "hot button" an interrogator wouldn't necessarily know anything about it in advance. But once an interrogator knows about a personal "hot button" for a prisoner being interrogated, are you seriously suggesting that this information should just be forgotten? That it shouldn't be memorized?

You are talking as if interrogating prisoners was an unimportant lousy job that no one can be expected to receive special training for.