Thank you, Senators!

Our senior Senator from Virginia, John Warner, today led three other Republicans in the Senate Armed Services Committee–and all the committee’s eleven Democratic members– in endorsing legislative language that preserves the vital “common Article 3” of the Geneva Conventions exactly as it is. The legislation in question is that to establish the special “military commissions” (courts), that the Prez asked for last week.
The vote by Warner and his allies delivers a hefty whump to the President’s plan to make this aspect of “fighting terrorism” into a partisan issue that, his political advisors had hoped, could help the Repubs in the upcoming mid-term elections. These four Republican Senators– Warner of Virginia, McCain of Arizona, Collins of Maine, and Lindsey Graham of S. Carolina– have shown two things:

(1) They will not allow the president to play politics with an issue of such fundamental importance as the US’s obligations under the Geneva Conventions, and
(2) They have a clear understanding of the need for, and value of, international reciprocity regarding such international obligations.

That Warner and McCain led this ASC mutiny is notable. Sen. Warner has served two terms in the military: one in the US Navy at the very end of WW2, and one in the Marines during the Korean War. Later he served first as Under-Secretary of the Navy then as Secretary of the Navy (1972-74). He has been in the senate since 1978.
McCain also served in the navy, and is well-known for having been taken captive in Vietnam during the Vietnam war, during which time he gained a vivid and very personal understanding of the importance of the Geneva Conventions.
Bush’s defeat on this issue is all the more notable since today he had also taken the step– extremely unusual for him– of actually traveling the 1.5 miles to Capitol Hill to lobby Congress for his Article-3-busting language in person.
He succeeded in getting the House Armed Services Committee to endorse his language. But Warner, McCain, and their colleagues he was unable to persuade.
One other notable aspect of this vote was the intense lobbying around it by retired military leaders– and indeed, by some serving military officers (is this illegal?). On the pro-Article-3 side, General John Vessey, a former Chairman of the Joint Chiefs of Staff, sent a forceful letter to Sen. McCain on September 12, saying that reported plans to dilute Article 3,

may weaken America in two respects. First it would undermine the moral basis which has generally guided [our] conduct in war throughout our history. Second, it could give opponents a legal argument for the mistreatment of Americans being held prisoner in time of war.

On September 13 Colin Powell, who both succeeded Vessey as Chairman of the Joint Chiefs and– perhaps more notably– actually served as Pres. Bush’s first Secretary of State, sent a short letter to McCain endorsing what Vessey had written.
On Sept. 12, 29 former generals, admirals, and high-ranking civilian Pentagon officials had sent a fairly lengthy letter to Sens Warner and Carl Levin (the ranking Democratic member on the ASC) in support of leaving US adherence to Article 3 exactly as it was. These august individuals argued,

The framers of the [Geneva] Conventions, including the American representatives, in particular wanted to ensure that Common Article 3 would apply in situations where a state party to the treaty, like the United States, fights an adversary that is not a party [to the Geneva Conventions], including irregular forces like al Qaeda. The United States military has abided by the basic requirements of Common Article 3 in every conflict since the Conventions were adopted. In each case, we applied the Geneva Conventions — including, at a minimum, Common Article 3 — even to enemies that systematically violated the Conventions themselves.
We have abided by this standard in our own conduct for a simple reason: the same standard serves to protect American servicemen and women when they engage in conflicts covered by Common Article 3. Preserving the integrity of this standard has become increasingly important in recent years when our adversaries often are not nation-states…
We have people deployed right now in theaters where Common Article 3 is the only source of legal protection should they be captured. If we allow that standard to be eroded, we put their safety at greater risk.
Last week, the Department of Defense issued a Directive reaffirming that the military will uphold the requirements of Common Article 3 with respect to all prisoners in its custody. We welcome this new policy. Our servicemen and women have operated for too long with unclear and unlawful guidance on detainee treatment, and some have been left to take the blame when things went wrong. The guidance is now clear.
But that clarity will be short-lived if the approach taken by Administration’s bill prevails. In contrast to the Pentagon’s new rules on detainee treatment, the bill would limit our definition of Common Article 3’s terms by introducing a flexible, sliding scale that might allow certain coercive interrogation techniques under some circumstances, while forbidding them under others. This would replace an absolute standard – Common Article 3 — with a relative one. To do so will only create further confusion.
Moreover, were we to take this step, we would be viewed by the rest of the world as having formally renounced the clear strictures of the Geneva Conventions. Our enemies would be encouraged to interpret the Conventions in their own way as well, placing our troops in jeopardy in future conflicts. And American moral authority in the war would be further damaged.
All of this is unnecessary. As the senior serving Judge Advocates General recently testified, our armed forces have trained to Common Article 3 and can live within its requirements while waging the war on terror effectively.
As the United States has greater exposure militarily than any other nation, we have long emphasized the reciprocal nature of the Geneva Conventions. That is why we believe – and the United States has always asserted — that a broad interpretation of Common Article 3 is vital to the safety of U.S. personnel. But the Administration’s bill would put us on the opposite side of that argument…

Powerful stuff. Even more so when you read the (auto)biographical information the writers have included there at the end of the letter.
And on the other side of the argument, we have–
A sad, perfunctory little letter addressed to the Chairs of, respectively, the House ASC and the Senate ASC, by (I think) the serving Judges Advocate-General of the four armed services and a colonel described as “Legal Counsel to the Chairman of the Joint Chiefs of Staff”.
These five guys say,

We do not object to section 6 of the Administration proposal, which would clarify [actually, obfuscate and dilute] the obligations of the United States under common Article 3… Indeed, we think these provisions would be helpful to our fighting men and women at war on behalf of our Country.

I note, of course, that as serving members of the military we cannot expoect these guys to come out and write or say anything in public that is critical of the President’s policy. I find it outrageous, though, that the Bushies have dragged these poor men into the fight on their side like this. (It would have been good if even one of them had resigned rather than be used in that way.)
Anyway, there have been some people in the serving military a bit braver than those five sad, weak-kneed individuals. For example, Human Rights First tells us that, in response to Bush’s Sept. 6 speech on the need for new legislation, “the Army’s deputy chief of staff for intelligence, Lt. Gen. John F. Kimmons, announced the Army’s rejection of coercive interrogation techniques in its revised Field Manual on Interrogations. Lt. Gen. Kimmons stated categorically that “[n]o good intelligence is going to come from abusive practices.”
Actually, that whole resource sheet from HRF is really well written and clearly argued.
So I’m not sure what will end up happening with this legislation. At some point, the full Senate needs to vote on it– not sure when– and at that point, the President might get the vote he needs. Or he might not…
But anyway, I think I’m going to call Sen Warner’s office tomorrow and give him a big bravo. Any JWN readers who live in– especially– Virginia, Arizona, Maine, or South Carolina should think of giving their relevant Senator a call along the same lines. Quite often we call our senators or representatives to ask them to do something. But they no doubt also appreciate it when we call to say a heartfelt “Thank you for going out on a limb and standing up for an important set of principles there.”