Preventing Cruel and Degrading Punishment for Terror Suspects Posted by Suzanne Nossel

There have been some interesting reports this week about the deliberations underway in the Bush Administration over whether to adopt as part of Defense Department guidelines language from the Geneva Conventions that would prohibit cruel, humiliating and degrading punishment.   These guidelines would apparently not apply to CIA interrogations, meaning that the cover prisons now coming to light would not be bound by these strictures.

Some in the Administration are putting forward solid arguments:  that referencing the conventions will help rebuild support for the war on terror among our allies, and send a signal of good faith to Muslims.  This dovetails with the fight underway now in Congress over Senator John McCain's proposed law to ban inhuman treatment during interrogations, a bill President Bush has vowed to veto.

What's amazing is how simplistic the counter-argument seems to be.   According to the NY Times:

Their opponents, who include aides to Vice President Dick Cheney and some senior Pentagon officials, have argued strongly that the proposed language is vague, would tie the government's hands in combating terrorists and still would not satisfy America's critics, officials said . . .

"We may know what they mean in the United States," one senior administration official familiar with the debate said of the Geneva terms. "But views around the world may differ from ours. Having a female interrogator even asking questions of a male might be humiliating to some parts of the Muslim faith."

Here as elsewhere those who reject international law do so on the grounds that once the US acknowledges that international legal obligations exist and apply to us, we then surrender all ability to affect how those requirements are interpreted, and how our actions are evaluated against them. 

In fact its just the opposite.   At least in this case, the mantle of international law makes us more, not less, equipped to shape how our actions are perceived by others. 

First off, its worth noting that the reference to the Geneva provisions in this DoD manual will have absolutely no effect on whether others hold our behavior up to the Geneva standards.   The Bush Administration's rationale for claiming that detentions as part of the fight against terror are exempt from Geneva Convention requirements may have gotten a hearing in the early months after 9/11, but after Guantanamo and Abu Ghraib, not to mention just the simple recognition that battling terror will go on for years and sweep up tens of thousands, it no longer holds up.  So allies and enemies will continue to measure our behavior against these standards whether we acknowledge them or not. 

Being able to cite a manual that mentioned Geneva Accord requirements would not have helped us quell the firestorm after Abu Ghraib.  But if US officers are acting in good fait (as they are 99% or more of the time), their government's willingness to formally commit itself to international standards means we're more likely to get the benefit of the doubt when actions are questioned. 

Yes, there will be disputes of legal interpretation - - but in most cases it will be neither possible nor necessary to definitively settle those.   Some Muslims might argue that having a female interrogate a male is inherently humiliating.  But that claim won't be tried in court, much less a Muslim court.  It will be aired publicly and, when the US is behaving reasonably, our interpretations will prevail.   

Our influence over the media, international institutions, and foreign governments gives us a leg up in ensuring that international legal provisions can't be easily used against us since we can shape how they are understood.  The vagueness of the provision that some in the Administration are complaining about can work in our favor, allowing us to argue that where unconventional techniques are needed, nothing in the convention prohibits them.

As for the point that embracing Geneva won't satisfy our critics, that's true.  But it may just satisfy some of our friends who would rather not criticize the US's conduct in the war on terror, but feel compelled to do so in the face of the Administration's apparent indifference to the human rights of certain detainees.

I made similar points several years ago, arguing that the US ought to wrap itself in the Geneva Conventions Law of Occupation in post-war Iraq in order to win ourselves some badly needed legitimacy.  The Administration rejected that approach then, but shouldn't again now.

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Comments

[John Penta]

Suzanne:

I agree wholeheartedly.

However, let's be very clear what we are applying to ourselves.

For example, I would be leery of *ever* signing up to the Additional Protocol of 1977 to GCIV (Which deals with "national liberation movements" and the like).

For what we're already signed up to? Absolutely.

But let's make it crystal clear that we are only adopting what we've actually signed *and* managed to get ratified by the Senate.

Otherwise, I fear we'd get the trap snapping shut on our feet...A trap consisting of a mess of treaties we never signed up to, or signed but never actually ratified.

[Demosophist]

Some in the Administration are putting forward solid arguments: that referencing the conventions will help rebuild support for the war on terror among our allies, and send a signal of good faith to Muslims.

The problem with this is that it's not really a principled argument. According to the same logic we'd achieve the same goal by throwing Israel to the wolves. I don't mean that the two are analogous in a substantive sense, but that the argument itself is insubstancial. If the conclusions that our potential allies have reached aren't grounded in principle then we'd be foolish to agree with them just for the sake of an apparent comity.

Secondly, it's beneath you to prop up a straw man proposed by the NYT as a characature of the opposition. The central issue in "international law" is that it's a misnomer. What ought to be compelling is a supranational set of rules, but the concept of international law attempts to preserve national sovereignty without monopolizing force. It's true that we obey constitutional arrangements partly because we agree to do so, but it's far more the case that we obey them because doing otherwise brings on the imposition of force.

In fact, I'd go further and say that we may very well be at the end of that era where agreement absent the threat of force was enough to bind us, and that everything runs downhill to comity. Judging from conditions in France everything runs downhill to anarchy and chaos, which makes sense.

And the US will fight tooth and nail to prevent the surrender of it's sovereignty to any supranational entity that isn't organized with Lockean principles at the core. That's the bottom line. If you think otherwise you're just being unrealistic. You're assuming the US is France, or something.

I actually heard a pretty pragmatic discussion of these issues recently by Thomas Barnett. His appealing argument is that not all nations are, or ought to be, equally sovereign. Sovereignty is conditional, and determined by the extent to which a nation has advanced beyond authoritarianism and joined a kind of interdependent trade network. The rules estabished in the "International Criminal Court" were intended to apply to those nations that have a weak claim on national sovereignty, or that "fall into the gap" as Barnett puts it. It therefore makes sense to grant exceptions to nations like the US (Marxisant dogma notwithstanding), at least until a critical mass is reached and the number of nations still in the gap (about 30% now) have been significantly reduced.

But, you know... this is pragmatics not high theory. It's conditioned on what works, rather than some grand theory about what ought to be.

Bottom line: There is no law without the surrender of sovereignty, and there will be no surrender of sovereignty from the US until the conditions of founding have been significantly changed to guarantee negative freedom.

And what's happening now in France is a fatal indictment, by the way, of the basic premise of multiculturalism... proposing that the mere existence of a group entitles it to sovereignty, and that this will ultimately yield comity. It apparently yields unending violence. Again, were it not for self-delution it wouldn't have been hard to see this coming.

I made similar points several years ago, arguing that the US ought to wrap itself in the Geneva Conventions Law of Occupation in post-war Iraq in order to win ourselves some badly needed legitimacy. The Administration rejected that approach then, but shouldn't again now.

Again, what does this have to do with principle? What is the argument? It seems to me that the philosophical dilemma with which we're confronted by terrorist strategy and tactics is something like Hume's Horror, whereby a person with an itch has the power to destroy the world and there's no principle that would allow anyone to stop him. There is no such absolute sovereignty for individuals or groups. But the ethical dilemma of dealing with threats posed by such individuals is easy:

Whatever one is willing to allow volunteers to undergo, one is free to impose on people who constitute a terrorist threat. This effectively doubles human suffering in the short term, but it also imposes rational limits on what can be done--limits that are conditioned to the actual circumstances... without imposing hard and fast rules on what can and can't be done. For the truth is, we simply aren't wise enough at this stage to know what is just or unjust in Hume's scenario. If you can find a volunteer with an uncontrollable itch who's willing to allow his urge to scratch to be constrained by force then you're justified in placing shackles on Hume's Horror. The idea might need a little more definition around the edges, but you get the idea. It's an "eye-for-an-eye" in reverse. Those willing to be blinded can save the world's sight.

It's this, or nothing... I think. All the rest is hopelessly theoretical and idealistic... or self-destructive.

[J Thomas]

Demosophist, I have to disagree with your "ethical" idea that it's OK for us to do to prisoners anything we can get a volunteer to take. The idea has some merit but it can't be done too literally.

After all, we have some BDSM volunteers who'd do things you probably wouldn't even want, some of them volunteer to be killed, and we have "transsexuals" who pay a lot of money to be sexually mutilated.

Try this approach -- let each interrogator use whatever methods he personally is willing to have done to him.

And then take it one step further, videotape the interrogation and ship him with the video to, say, malaysia where they carry it out.

And then one step further. Different people have different limits. You're talking about the Golden Rule here, but if you like to eat worms and the other guy doesn't, eating worms is no punishment for you. So let the malaysians come up with something they think should be an equivalent for you. If it seems like a giant imposition for your victim to be naked, or to have feminine vaginal secretions rubbed on him, but for you that's just part of the fun, they should find something that bothers you as much. Perhaps eating used tampons? Fair's fair, the issue is how much it bothers you, not the specific activity.

Regardless of the details, the interrogatee doesn't know what you're going to do, and he doesn't know how far you'll go. So it ought to be that way for you too.

And now one step more. If what you do to your interrogatee is to *break* him, then doesn't it make sense that what happens to you in return is you get *broken*? They should go on doing stuff to you until you publicly admit to war crimes you never did, admit to raping little boys and mincing little girls, until you admit to treason against the USA, etc. And you also give all the details about your orders etc, including any military secrets you might know about. With the videotapes of your confessions sent to your family and superior officers etc.

And one final point -- for each guy you interrogate you should get the interrogation you volunteered for right away, as fast as they can ship you to malaysia, and before you start interrogating anybody else.

I think at that point it's almost fair.

Of course, our trained interrogators say they don't need those techniques. I get the strong impression that the only reason we need torture for information is that we don't have enough properly-trained interrogators. This doesn't need to be a big moral issue for us. Train the interrogators we need, who can actually get answers, and we won't have such a problem about mistreating detainees -- at least we wouldn't *need* to have a problem about that.

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