(Update, April 20, 2007, see middle of post, here.)
(Update, Nov 2, 2005. Changed Matt to Matthew. And thanks to TNR blog and AmericanScene blog and National Review's The Corner blog for picking this up.)
The New York Times has a front page story today on the struggle within the Bush administration over detainee policy - detention, interrogation, what constitutes okay and not okay treatment, etc. It is by Tim Golden and Eric Schmitt, here.
I will try to comment later, but I am on my way to Prague today for a board meeting. However, I did want to note that the article discusses my good friend Matthew Waxman, getting beat up by Cheney's people. Matt has been pushing a revision of detainee policy that would adopt, as a matter of policy but not law, basic language and principles from Common Article 3 of the Geneva Conventions. Common Article 3 by its terms covers wars "not of an international" character, meaning internal or civil wars. In that sense, it doesn't have much to do with the war on terror, which is not an internal or civil war. On the other hand, it is a good place from which to draw standards because (a) it does deal with fighters who are non state actors, since rebels in a civil war are non state actors and (b) it was drafted as a kind of bottom-line set of standards, applicable in anything that rises to the level of an "armed conflict."
So although I take the Cheney people's point that the war on terror is not an internal armed conflict, and although I agree that Article 3 doesn't apply as a legal matter in any case as a set of standards, it is the right place from which to draw a statement of minimum treatment standards. Common article 3 does not treat illegal combatants entitled to Geneva III protections, nor does it place any restriction on the ability of a government to try, including under military commission or non-civilian courts, unprivileged belligerents such as Al-Qaeda suspects. It does use language about cruel and inhumane treatment, and outrages upon personal dignity, which apparently the Cheney folks think could be used, for example, to argue that a female US interrogator merely asking questions of a Muslim male could constitute outrages against personal dignity. Leaving aside that the "outrages" language historically was a euphemism for sexual assault, the real issue here is how the US defines its practices in relation to the language.
Given, however, that the Bush administration engaged in the utter foolishness of taking a bunch of religious fanatics and giving them solely a Koran for reading material, rather than loading them up on decadent Western entertainment and thought, thus reinforcing their sense of martydom and heroically self-referential world view, it seems a little late for arguing about these issues. The US has done more to reinforce anti-American Muslim resentment, paradoxically, by kow-towing so stupidly to supposed Muslim mores, in ways that no Muslim country would do in war or conflict. But if you announce in advance that you are going to make Muslims happy, then you in effect reward further Muslim resentment as a way of getting more reward, and that has been the sole result of all the goofy politically correct multi-culti way in which so much of the cultural side of the war on terror has been run. It was and is a foolish strategy, exemplified at this moment by a person truly out of her depth, Karen Hughes, and by those who dreamed up a strategy in the first place of trying to show the world that the US would be nice to Muslims, even ones trying to kill the infidel. They artificially set the bar for behavior at a level that angels in heaven itself could not meet, and then seemed surprised when the response from the Muslim world was not, look how humane they are, but rather, what have you done for us lately?
When it comes to establishing standards, then, the US simply must define for itself what is okay and not, and say what it thinks fits. It should look to its own moral sense first and foremost, rather than acting as though it had no internal moral standards but instead was nervously looking to the rest of the world for approval because it had no internal sense of right and wrong in these cases, no sense of how to balance security interests and humane treatment. The rest of the world will object in any case - it will withhold its approval because, frankly, that is the only way for it to stay in the game of being an interlocutor with the superpower. The task is to define in a commonsense way, within a straightforwardly American sensibility, what those terms mean and tell it to the rest of the world. Those who were going to object will do so in any case, but the US public, at least, will understand and accept it, in a way that it does not now. And yet, within that debate, the words of common article 3 are the best standard, as a matter of policy and not law, in part because it uses the language that should be used in these cases because it recognizes the global and universal interest in balancing security and humane treatment.
But the US also has another reason, a much more strategically important one, for using the language of common article 3 - and this is something that the Cheney people seem not to have considered. It is because the US has an enormous interest in shaping, through its state practice and its opinio juris, the legal meanings of those terms in international law of war over time. This latter possibility seems not to have occurred to the Cheney people, to judge by the NYT article - the issue is not, as the Times piece attributes to Cheney's staff, whether others in the world, the human rights groups, other countries, etc., will denounce US interpretations of what the words of common article 3 mean. Of course they will, because they are trying to shape the future interpretations of those words amd because they correctly perceive that objecting to US policy is a way of showing that one is a player in the world But frankly so what?
What the US should be doing is not refraining from ever using those words for fear that someone might denounce the US interpretation - thus leaving their interpretation and meaning always and forever in the hands of other countries and outside NGO groups - but instead vigorously asserting through state practice and constant reiteration and argument that the US is right in its use of those words and itnerpretations and that a state as large, important, and assertive as the US on the meaning of those terms cannot be ignored in what those terms mean. The US has to assert some level of ownership over the debate of the meaning of the law of war, which it cannot do by refusing ever to use its language.
Matthew Waxman is right and Addington et al. are wrong - and curiously, Matthew Waxman is right not because he is encouraging the US to give in to international pressure because it is weak, but instead because he understands that the US must, over the long haul, exercise its power to shape the future meanings of those terms to conform to US standards. It is an argument from strength and the willingness to assert it. Whereas the Cheny, Addington, et al. position is really an argument to avoid ever using the language of article 3 or international law generally because of a perception that the US is weak and cannot, through the vigorous assertion of state practice and opinio juris, shape the international law meanings of those terms.
This is not in the least an argument that the US should give in to those who would tell the US what those standards have to be - the argument that well intentioned liberals often give for giving in to the international community, "we're big enough to give in on this," which is to say, we're big enough to be weak and not use our power because being big and powerful is really unfair to the rest of the world. It is, rather, an argument that the US can and should forcefully throw its weight around on the world stage to define those standards, as international standards - its way. Waxman argues for an assertion of US strength, Cheney et al. counsel avoidance from a fundamental belief in US weakness.
And if Cheney et al. win on this point, then, naturally, the perception of weakness will indeed form the future reality.
Excerpts from the Times piece:
November 2, 2005
Detainee Policy Sharply Divides Bush Officials
By TIM GOLDEN and ERIC SCHMITT, NYT
WASHINGTON, Nov. 1 - The Bush administration is embroiled in a sharp internal debate over whether a new set of Defense Department standards for handling terror suspects should adopt language from the Geneva Conventions prohibiting "cruel," "humiliating" and "degrading" treatment, administration officials say.
Advocates of that approach, who include some Defense and State Department officials and senior military lawyers, contend that moving the military's detention policies closer to international law would prevent further abuses and build support overseas for the fight against Islamic extremists, officials said.
Their opponents, who include aides to Vice President Dick Cheney and some senior Pentagon officials, have argued strongly that the proposed language is vague, would tie the government's hands in combating terrorists and still would not satisfy America's critics, officials said.
The debate has delayed the publication of a second major Pentagon directive on interrogations, along with a new Army interrogations manual that was largely completed months ago, military officials said. It also underscores a broader struggle among senior officials over whether to scale back detention policies that have drawn strong opposition even from close American allies.
Since Mr. Bush's second term began, several officials said, factions within the administration have clashed over the revision of rules for the military tribunals to be held at Guantánamo Bay, Cuba, the transfer of some prisoners held there, and aspects of the United States' detention operations in Afghanistan and Iraq.
"It goes back to the question of how you want to fight the war on terror," said a senior administration official who has advocated changes but, like others, would discuss the internal deliberations only on the condition of anonymity. "We think you do that most successfully by creating alliances."
The document under discussion, known as Department of Defense Directive 23.10, would provide broad guidance from Defense Secretary Donald H. Rumsfeld; while it would not spell out specific detention and interrogation techniques, officials said, those procedures would have to conform to its standards. It would not cover the treatment of detainees held by the Central Intelligence Agency.
The behind-the-scenes debate over the Pentagon directive comes more than three years after President Bush decided that the Geneva Conventions did not apply to the fight against terrorism. It mirrors a public battle between the Bush administration and Senator John McCain, Republican of Arizona, who is pressing a separate legislative effort to ban the "cruel, inhuman or degrading treatment" of any detainee in United States custody.
After a 90-to-9 vote in the Senate last month in favor of Mr. McCain's amendment to a $445 billion defense spending bill, the White House moved to exempt clandestine C.I.A. activities from the provision. A House-Senate conference committee is expected to consider the issue this week.
Mr. Cheney and some of his aides have spearheaded the administration's opposition to Senator McCain's amendment; they were also quick to oppose a draft of the detention directive, which began to circulate in the Pentagon in mid-September, officials said.
A central player in the fight over the directive is David S. Addington, who was the vice president's counsel until he was named on Monday to succeed I. Lewis Libby Jr. as Mr. Cheney's chief of staff. According to several officials, Mr. Addington verbally assailed a Pentagon aide who was called to brief him and Mr. Libby on the draft, objecting to its use of language drawn from Article 3 of the Geneva Conventions.
"He left bruised and bloody," one Defense Department official said of the Pentagon aide, Matthew C. Waxman, Mr. Rumsfeld's chief adviser on detainee issues. "He tried to champion Article 3, and Addington just ate him for lunch."
Despite his vehemence, Mr. Addington did not necessarily win the argument, officials said. They predicted that it would be settled by Mr. Rumsfeld after consultation with other agencies.
But while advocates of change within the administration have prevailed in a few skirmishes, some of those officials acknowledged privately that proponents of the status quo still dominate the issue - partly because of the bureaucratic difficulty of overturning policies that have been in place for several years and, in some cases, were either approved by Justice Department lawyers or upheld by the federal courts.
"A lot of the decisions that have been made are now difficult to get out of," one senior administration official said.
A spokesman for the vice president, Stephen E. Schmidt, said Mr. Addington would have no comment on his reported role in the policy debates. A Defense Department spokesman, Bryan Whitman, also would not discuss Mr. Waxman's role except to say it was "certainly an exaggeration" to characterize him as having been bloodied by Mr. Addington.
Mr. Whitman confirmed that the Pentagon officials were revising four major documents - including the two high-level directives on detention operations and interrogations and the Army interrogations manual - as part of its response to the 12 major investigations and policy reviews that followed the Abu Ghraib abuse scandal.
The four documents "are nearing completion or are either undergoing final editing or are in some stage of final coordination," Mr. Whitman said. But he would not comment on their contents or on the internal discussions, beyond saying it was important "to allow and encourage a wide variety of views to come to the surface."
The administration's policies for the detention, interrogation and prosecution of terrorism suspects have long been a source of friction within the government.
Even some supporters of those policies have acknowledged that the tensions stem in part from the way they were pushed through after the Sept. 11 attacks, by a handful of administration lawyers who circumvented international-law experts, military lawyers and even some cabinet-level officials who might have objected.
Many officials said Mr. Addington, who helped create the legal framework after 9/11, remains a bulwark in support of those policies, deftly blocking or weakening proposed changes. Nonetheless, the internal politics of those issues have begun to shift in Mr. Bush's second term.
Several architects of the original policies have left the government. Some other senior officials, who had challenged aspects of the policy with limited success, have gained stronger voices in new posts.
Condoleezza Rice, who occasionally questioned the Pentagon's management of Guantánamo when she was national security adviser, has called more forcefully for a reconsideration of some detention policies as secretary of state, a stance generally backed by her successor at the White House, Stephen J. Hadley, administration officials said. The new deputy defense secretary, Gordon R. England, has also been an influential advocate for reviewing the detention policies within the Pentagon, officials said.
"The results may not be very different, but the discussions have changed," a senior military lawyer said. "And there are more discussions."
Since President Bush's decision in February 2002 to set aside the Geneva Conventions in fighting terrorists, government lawyers have debated what legal framework should apply to combatants in a struggle that the administration argues does not fit into the categories of international violence contemplated by the 1949 conventions.
Lawyers at the State Department raised the issue repeatedly, officials said. But because the department opposed the president's original decision to put aside the conventions, the efforts of its lawyers were largely dismissed as attempts to revive a question that had already been decided, they added.
Beginning late last year, Defense Department lawyers took up the issue as they revised Directive 23.10, the "DoD Program for Enemy Prisoners of War and Other Detainees." A roughly 12-page draft of the directive, which began circulating in the Pentagon in mid-September, received strong support from lawyers for the armed services, the military vice chiefs and some civilian defense officials, several officials said.
"The uniformed service lawyers are behind the rewrite because it brings the policy into line with Geneva," one senior defense official said. "Their concern was that we were losing our standing with allies as well as the moral high ground with the rest of the world."
Following one of the recommendations of the Sept. 11 commission, the draft, written by officials in Mr. Waxman's office and military lawyers, lifted directly from Article 3 of the Geneva accords in setting out new rules for the treatment of terrorism suspects, three officials who have reviewed the document said.
Common Article 3, as the provision is known, sets out minimum standards for the treatment of captured fighters and others in "armed conflicts not of an international character." Although President Bush determined in February 2002 that the article was not relevant to Al Qaeda or the Taliban because of its international focus, the Sept. 11 panel noted that it "was specifically designed for those cases in which the usual laws of war did not apply."
The draft Pentagon directive adopted the language of Common Article 3 "as a matter of policy rather than law," one defense official said. Even so, the Geneva reference was opposed by two senior Pentagon officials, Stephen A. Cambone, the under secretary of defense for intelligence policy, and, William J. Haynes, the department's general counsel, defense officials said.
Mr. Addington, who has been a close bureaucratic ally of both defense officials, soon called Mr. Waxman to the Old Executive Office Building to brief him and Mr. Libby on the directive. Two defense officials who were told about the meeting said Mr. Addington objected to phrases taken from Article 3 - which proscribes "cruel treatment and torture," and "outrages upon personal dignity, in particular murder of all kinds, mutilation, humiliating and degrading treatment" - as problematically vague.
"We may know what they mean in the United States," one senior administration official familiar with the debate said of the Geneva terms. "But views around the world may differ from ours. Having a female interrogator even asking questions of a male might be humiliating to some parts of the Muslim faith."
Another official said Mr. Addington and others also argued that Mr. Bush had specifically rejected the Article 3 standard in 2002, setting out a different one when he ordered that military detainees "be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
Only when the dispute is resolved, defense officials said, would the Pentagon conclude the drafting of the second directive, known as 31.15, on the interrogation of prisoners including terrorism suspects. That document, in turn, would make possible the publication of a roughly 200-page Army manual for interrogations that was virtually completed last spring, officials said.
"If we don't resolve this soon," one defense official said, referring to the overlapping debate over Senator McCain's proposal, "Congress is going to do it for us."
Wednesday, November 02, 2005
(Update, April 20, 2007, see middle of post, here.)