Bush vs. JAG (w/ help from TJ)

Today’s Boston Globe reported startling dissent at the top ranks of America’s military lawyers toward the Bush Administration’s recent rule-making on CIA interrogations of prisoners. Read the whole report here. The crux of their concern, as delivered to three top US Republican Senators:

“The Judge Advocates General of all branches of the military told the senators that a July 20 executive order establishing rules for the treatment of CIA prisoners appeared to be carefully worded to allow humiliating or degrading interrogation techniques when the interrogators’ objective is to protect national security rather than to satisfy sadistic impulses.“

Here’s how the new get-out-jail-free card works for the CIA interrogators
Common Article 3 of the Geneva Conventions outlaws “cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment….” As the US Supreme Court ruled last year, “in all circumstances,” detained prisoners are “to be treated humanely.”
Never mind vague, lame Bush spokesperson claims to the contrary, the “tortured language” in the President’s executive order fudges the Geneva prohibition’s clarity by adding a critical caveat. According to the military JAG’s,

CIA interrogators may not use “willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual.” As an example, it lists “sexual or sexually indecent acts undertaken for the purpose of humiliation.”

In short, in the view of the US military’s own top lawyers, the “for the purpose” escape clause means an interrogator can be as sadistic, cruel and humiliating as they wish, provided they didn’t do it “for the purpose” of being sadistic, cruel, or humiliating. Put crassly, if you mistreat a prisoner, your best defense is to say you did it for America’s “national security.”
Amazingly, the Army’s top JAG officer, Major General Scott C. Black, felt compelled to send a memo to lower ranking officers and soldiers,

“reminding them that Bush’s executive order applies only to the CIA, not to military interrogations. Black told soldiers they must follow Army regulations, which “make clear that [the Geneva Conventions are] the minimum humane treatment standard” for prisoners.

No doubt General Black is worried about much confusion in the ranks, even among officers. After all, what’s a soldier to think? (especially the ones who for the past several years have gotten their moral compasses from “24” and had Faux News piped in round-the-clock to their mess halls) How is it, they might wonder, that the CIA can “do it” but we can’t? Wink, wink… Besides, as a certain relative of mine would reason, he’s my “duly elected commander-in-chief.”
I hope I can get a copy of General Black’s memo. (If anybody has it, please post.)
Before readers start waving the “liberal” bogey about the Boston Globe, consider that several quotes in today’s report come from an oped published last month in the Washington Post by former Marine Commandant P.X. Kelley and distinguished University of Virginia Law Professor, Robert F. Turner.
These two-tour Vietnam veterans are, shall we say, not easily branded as “liberal.” Bob Turner, a former Reagan Administration player, happens to be a friend from the past (don’t hold that against him); we even shared an office for a year. Turner lately has been carrying a lot of water for President Bush and the imperial Presidency – as it takes so much of Bob’s previous energetic scholarship to its most extreme breaking point. (including defending executive privilege and Presidential signing statements.)
It’s all the more noteworthy then that Kelley & Turner came out squarely opposed to the President’s end-run around the Geneva Accords for the CIA. They write,

“It is firmly established in international law that treaties are to be interpreted in “good faith” in accordance with the ordinary meaning of their words and in light of their purpose. It is clear to us that the language in the executive order cannot even arguably be reconciled with America’s clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person.”

(As a recent Jefferson fellow,) I’m especially interested that they twice invoke Thomas Jefferson:
In April of 1793, Secretary of State Thomas Jefferson wrote to President George Washington that nations were to interpret treaty obligations for themselves but that “the tribunal of our consciences remains, and that also of the opinion of the world.” He added that “as we respect these, we must see that in judging ourselves we have honestly done the part of impartial and rigorous judges.”
(This is part of Jefferson’s intense policy debate with Alexander Hamilton before the President Washington, regarding whether or not the treaty with France was still in force, amid France’s own revolutionary tumult. Of special note, both Jefferson & Hamilton quoted extensively from international legal texts – Vattel especially – in making their cases. Wonder when the last time anything similar happened in Washington?)
In a letter to President James Madison in March 1809, Jefferson observed: “It has a great effect on the opinion of our people and the world to have the moral right on our side.” Our leaders must never lose sight of that wisdom.
—————————
I’m overdue to publish an essay on Jefferson and the Treatment of Prisoners of War. (Jefferson had considerable experience with some of the same thorny issues faced today — and at times, he was tempted to err on the side of “harsh retribution”….)
Yet for the moment, here’s one favorite Jefferson quote regarding the treatment of 4,000+ British & Hessian Prisoner’s of War detained here in Charlottesville. (out “Barrack’s Road”) Writing in 1779 to then Governor Patrick Henry, Jefferson is defending expenditures for the care of the detained:

“Treating captive enemies with politeness and generosity” was “for the benefit of mankind to mitigate the horrors of war.”

Jefferson reasoned the experience would be a good example to be seen by what he referred to in the Declaration of Independence as “a Candid World.”
Contrary to the American founders, the Bushists, yet again, have demonstrated they have anything but a “decent respect to the opinions of mankind.”