Clash of visions over CIA interrogations
Can the broad terms of the Geneva Conventions be more clearly defined without weakening them?
At the center of the congressional debate over whether to authorize harsh interrogation tactics in the war on terror is a fundamental truism. Cruelty is an uncomfortable concept for most Americans.
How mean is too mean? When does harsh treatment become inhumane? When does a coercive interrogation cross the line and become degrading?
These aren't just difficult legal and ethical questions, they are a measure of US character and morality. That is the uniting point of a group of maverick Republican senators who object to rubber-stamping the White House effort to continue the controversial interrogation program by the Central Intelligence Agency.
White House officials are approaching the issue from a different perspective. How much dignity is due a man who would plant a bomb in a preschool or eagerly detonate a device that could level Washington, D.C.?
It is these competing conceptions that animate the current negotiations between Senate Republicans and the White House. The struggle is a reflection of something both disquieting and reassuring about America in 2006, analysts say.
"We are trying to follow our highest ideals," says John McGinnis, a professor at Northwestern University's law school. "If we go back to the Revolutionary War, George Washington treated his prisoners better than the British treated our prisoners. But there is this danger that the terrorists who don't follow our rules will try to use our system to destroy us."
Two weeks after President Bush publicly acknowledged the existence of secret CIA prisons overseas where harsh interrogation techniques were used against top Al Qaeda suspects, his administration is struggling to maintain legislative support to keep the program going.
A group of Republican senators led by John McCain of Arizona, Lindsey Graham of South Carolina, and John Warner of Virginia appears intent on forcing the administration to abide by the broad dictates of Common Article 3 of the Geneva Conventions.
Common Article 3 establishes a base line of protections for anyone captured in a conflict. The Bush administration had decided that Common Article 3 did not apply in the war against Al Qaeda since the terror group does not honor the laws of war. But the Supreme Court ruled in June that it does apply.
Now Mr. Bush is trying – after the fact – to establish a legal foundation for a secret CIA program that has operated since 2002. The problem is that some of the wording in Common Article 3 leaves Americans who participated in the interrogations vulnerable to war-crimes charges.
In addition to torture, the common article bars "cruel treatment" as well as "outrages upon personal dignity, in particular humiliating and degrading treatment."
"Such phrases standing alone mean different things to Americans," Attorney General Alberto Gonzales told reporters on Monday. "Think of the differences in interpretation that will exist between differing legal systems and cultures of the nations of the world."
In its proposal to Congress, the Bush administration is seeking a clear statement from lawmakers on what would constitute a breach of Common Article 3. In addition, the president is asking Congress to grant retroactive immunity to those involved in the CIA program.
At press time, there were conflicting reports about the status of the negotiations and how a clear statement might be expressed in legislation.
Some observers are skeptical that a deal can be reached.
"I don't believe there is a principled way to compromise on the meaning of Common Article 3," says Elisa Massimino of the advocacy group Human Rights First, who has been closely following the negotiations.
The administration had sought to amend the US War Crimes Act to help insulate the CIA program from legal liability in American courts. But the heart of the administration's approach was to ask Congress to adopt the same terms of compliance for Common Article 3 as are spelled out in the December 2005 Detainee Treatment Act.
The DTA says that no one in US custody anywhere in the world "shall be subject to cruel, inhuman, or degrading treatment or punishment."
Administration officials prefer the DTA wording over Common Article 3 wording because they say it will not be subject to varying interpretations.
Critics warn that the administration is opening a Pandora's box.
"This is extremely dangerous terrain the president has walked upon now," says David Scheffer, director of the Center for International Human Rights at Northwestern University School of Law and former US ambassador at large for war crimes issues during the Clinton administration.
Professor Scheffer says Common Article 3 was carefully drafted to deter broad categories of potential human rights abuses. "If we take this step to narrowly define Common Article 3 crimes, it will be open season for other governments to do exactly the same thing," he says. And that, Scheffer adds, would put US troops at substantial risk whenever they serve overseas.
"Once you narrowly define what the general prohibitions in Common Article 3 cover, whatever you do not prohibit in your detailed list of prohibited activity will be assumed to be appropriate and legal," he says. "It was never the intention of the drafters of the Geneva Conventions and of Common Article 3 to be so specific in defining these crimes. That would create an enormous opportunity to gut the convention itself."
Other analysts say the war on terror poses unique challenges not directly addressed in international accords governing wars between nation-states. Presidents have the power to interpret international treaties, they add.
"A state should have a wide degree of flexibility to determine what constitutes these standards," says James Carafano of the Heritage Foundation. The president must have wide latitude to defend the nation in wartime, he adds.
"To tell the administration what interrogation techniques it can or can't use would be like Congress trying to tell the military which hills they have to take in a war," Mr. Carafano says. "This is encroaching on the power of the executive."