President Bush claims to be worried that our CIA interrogators are confused by the rules that govern them. This claim is hogwash.
While addressing the post-Hamdan v. Rumsfeld battle going on in the Senate over the U.S.’s treaty obligation to adhere to the terms of Common Article 3 of the Geneva Convention, President Bush claimed at Friday’s press conference that all he is seeking to do in his proposed legislation is to define the Article’s “vague” provisions.
He said, “the standards are so vague that our professionals won’t be able to carry forward the [interrogation] program, because they don’t want to be tried as war criminals. They don’t want to break the law.” Providing a congressionally-approved, American definition of Common Article 3 would supposedly provide CIA interrogators of terror suspects with clear guidelines as to which interrogation techniques are legal and which are illegal. Sounds simple and straightforward -- but is it?
A prohibition contained in Common Article 3 (which is enforceable criminally through the 1996 War Crimes Act which Bush seeks to change) forbids “outrages upon personal dignity, in particular humiliating and degrading treatment.” Clearly, many of the nauseating abuses committed by Americans at Abu Ghraib and elsewhere (stripping detainees naked, dousing them with cold water, bombarding them with loud music for hours, putting them in stress positions, depriving them of sleep and light) would constitute violations of Common Article 3. Those military members who have been prosecuted, however, were charged in military courts under the Uniform Code of Military Justice. Some of the UCMJ’s provisions are just as vague as those of Common Article 3 – if not more so.
For example, the UCMJ’s Article 93 makes it a crime to engage in “cruelty, oppression or maltreatment” of a subordinate. Is “cruelty, oppression or maltreatment” less vague than “humiliating and degrading treatment”? The Manual for Courts-Martial, the official guide used by all military lawyers to implement the UCMJ, does list specific acts which could constitute violations of Article 93 or other articles of the UCMJ. These sample charges are known as “specifications.” The Manual makes clear that a military accused can be charged with a specification which is not listed. If an accused claims that a new specification does not amount to a violation of an article (such as 93), his lawyer could make that argument to the court, and if necessary, to the appellate military courts. That is the way our system works, because it is impossible to describe in advance all the permutations of bad behavior that humans are capable of that are sufficiently evil to be deemed criminal.
Other articles of the UCMJ that are even more vague than Article 93 are 133 and 134. Article 133 prohibits “conduct unbecoming an officer and gentleman.” Article 134, long known as “the devil’s article” because it has been used for several decades to punish behavior that was undefined in advance, makes criminal “all disorders and neglects to the prejudice of good order and discipline in the armed forces” and “all conduct of a nature to bring discredit upon the armed forces.” The appellate courts have upheld these articles against challenges by defense lawyers that they were “unconstitutionally vague.”
During the President’s press conference, it would have been reasonable to expect at least one White House press corps reporter to ask Bush why Common Article 3 was deemed by him to be too vague -- while the UCMJ Article 134 was not. Not a single reporter posed the question.
The Bush Administration’s real agenda likely has at least three goals: first, to allow CIA interrogators to continue to engage in “soft torture,” so long as it doesn’t “shock the conscience”; second, to provide immunity for all those interrogators, civilian and military, who committed outrages upon detainees’ personal dignity and engaged in humiliating and degrading treatment in the past few years; and third, to give congressionally-granted immunity to senior Bush Administration officials for their having encouraged field operatives to inflict degrading treatment and outright torture in the past.
Myriads of articles have been published about the notorious “Torture Memo” of August 1, 2002, and others, which defined torture so narrowly as to “legalize” what most people and nations would regard as torture. These law-twisting memos, bitterly contested at the time by the Judge Advocates General of our Armed Forces as violating our most noble traditions, told President Bush exactly what he wanted to hear – that he and he alone, could decide what interrogation methods may be used in the “war on terror.”
Even after the Supreme Court’s decision in Hamdan v. Rumsfeld buried their arguments in justification of the tyrannical (“unitary”) Presidency, Bush’s operatives continue to push for congressional approval to water down established international standards. If Bush’s version of interrogation rules and military tribunals (including use of coerced and secret evidence) becomes law, not only will U.S. soldiers be put at greater risk of torture by other countries; the U.S.’s reputation in the world will be further diminished, and the moral high ground will be gone forever.
Robert S. Rivkin, author of GI Rights and Army Justice, is a San Francisco-based writer and lawyer who specialized in military law for many years.