Their credentials as patriots, in the sense that the right wing in this country limits that term, are impeccable. General P.X. Kelley was appointed by GOP icon Ronald Reagan as commandant of the Marine Corps, a post in which he served from 1983-87. Robert F. Turner was an attorney in the Reagan White House who has no problem with warrantless wiretapping or presidential signing statements.
But they have a problem – a great big problem – with the executive order that President Bush signed last week interpreting Common Article 3 of the Geneva Conventions in relation to CIA interrogations. While some observers have praised the order, others have said not so fast – what does this document really say? But most of those critics are what you might call the usual suspects. In other words, groups with words like human rights in their names. Easily ignored, easily mocked, easily smeared. But Kelley and Turner?
In an Op-Ed this morning that Washington Post editors headline War Crimes and the White House: The Dishonor in a Tortured New ‘Interpretation’ of the Geneva Conventions, the two men write:
But we cannot in good conscience defend a decision that we believe has compromised our national honor and that may well promote the commission of war crimes by Americans and place at risk the welfare of captured American military forces for generations to come. …
In other words, as long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not “done for the purpose of humiliating or degrading the individual” — even if that is an inevitable consequence — the president has given the CIA carte blanche to engage in “willful and outrageous acts of personal abuse.” …
To date in the war on terrorism, including the victims of the Sept. 11 attacks and all U.S. military personnel killed in action in Afghanistan and Iraq, America’s losses total about 2 percent of the forces we lost in World War II and less than 7 percent of those killed in Vietnam. Yet we did not find it necessary to compromise our honor or abandon our commitment to the rule of law to defeat Nazi Germany or imperial Japan, or to resist communist aggression in Indochina. On the contrary, in Vietnam — where we both proudly served twice — America voluntarily extended the protections of the full Geneva Convention on prisoners of war to Viet Cong guerrillas who, like al-Qaeda, did not even arguably qualify for such protections.
As has often been said since post-9/11 torture was exposed, even those who have no moral objections should surely pause for consideration of self-interest in the matter. As Kelley and Turner go on to point out, the Geneva Conventions protect American military forces.
Our troops deserve those protections, and we betray their interests when we gratuitously “interpret” key provisions of the conventions in a manner likely to undermine their effectiveness.
Policymakers should also keep in mind that violations of Common Article 3 are “war crimes” for which everyone involved — potentially up to and including the president of the United States — may be tried in any of the other 193 countries that are parties to the conventions.
The executive order came about, not because the Cheney-Bush Administration had a change of heart about the CIA interrogation program. Rather it was a consequence of the combined pressure of outrage over the photos from Abu Ghraib and a Supreme Court ruling, plus passage of the deeply flawed Military Commissions Act of 2006. The MCA specifically required the Administration to draft an executive order that places future interrogations inside the parameters of international law. Hence, last Friday’s signing.
Progress? Or just another Cheney-Bush flip-off delivered with more serpentine charm and subtlety than is usually the case? As David Cole, law professor at Georgetown University and a board member of the Center for Constitutional Rights, wrote earlier this week at Salon.com:
Bush’s torture ban is full of loopholes
But how much of a step the administration has really taken remains a serious question. The actual tactics the CIA is authorized to use remain classified, based on the bogus claim that agency interrogators need to keep detainees guessing about how far they can go in order to interrogate effectively. The Army, by contrast, has set forth for the world to see the specific tactics its interrogators can employ — in the Army Field Manual. …While the executive order flatly forbids torture and cruel, inhuman and degrading treatment, its failure to specify permissible and impermissible techniques seems designed to leave the CIA wiggle room. A prohibition on “acts of violence,” for example, applies only to those violent acts “serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment,” as defined by the Military Commissions Act. The MCA, in turn, limits “cruel and inhuman treatment” to the infliction of bodily injury that entails: “(i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty.” In other words, the president’s order appears to permit cutting or bruising a suspect so long as the injury does not risk death, significant functional impairment or “extreme physical pain,” an entirely subjective term.
Sen. John D. Rockefeller IV, the West Virginia Democrat who is chairman of the Senate intelligence committee, told the Washington Post on Saturday that it is unclear what the executive order “really means and how it will translate into actual conduct by the CIA.” The Senator repeated his committee’s months-old demand that the White House turn over a copy of the Justice Department’s legal analysis of the new interrogation guidelines.
We know, of course, how the Cheney-Bush Administration deals with subpoenas by congressional committees. Less forceful demands are simply forgotten. So, for now, we can only guess at what is included in those secret guidelines governed by the iciest of euphemisms: “enhanced interrogation techniques.”
