JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that the new US Army Field Manual on Intelligence Interrogation now being drafted should drop sections that would perpetuate unlawful treatment and illegally differentiate between standards of treatment applicable to prisoners of war and non-prisoners of war...
arious media reports indicate that a nearly-final draft of a new Army Field Manual on interrogation of detainees contains major changes from previous military manuals, Army Subject Schedules, and other military publications. Some of the draft changes would perpetuate unlawful treatment during interrogation for alleged terrorists or unprivileged belligerents that has been authorized by several members of the Bush Administration and military commanders at Guantanamo Bay and Iraq, including Secretary Rumsfeld (in at least his December 2, 2002 action memo and his April 16, 2003 memo authorizing, among other tactics, the stripping of detainees naked and hooding for interrogation and the use of dogs to instill intense fear for interrogation), Major General Miller, and Lieutenant General Sanchez (at least in his September 14, 2003 memo). The new final draft is being created under the supervision of Under-Secretary of Defense Stephen Cambone, who opposes use of legally required minimum protections for all detainees under customary international law reflected in common Article 3 of the Geneva Conventions and who (along with Vice President Cheney and his chief of staff David Addington) openly opposed passage of the McCain Amendment to a 2005 Defense Appropriations Act both of which set forth absolute prohibitions of cruel, inhuman and degrading treatment of any human being, regardless of their status and regardless of purpose.
Media also report that DOD civilian leaders, Addington, and others have argued that the Geneva Conventions do not apply to terrorists or irregular fighters, which is widely known to be incorrect, and that the new draft manual would create two separate sets of interrogation tactics one for prisoners of war and the other for non-prisoners of war. The latter set would allow harsh interrogation techniques. Despite the Administration's assertion, however, there are no gaps in the reach of at least some forms of Geneva law protection during any armed conflict to detainees of any status. Additionally, the absolute rights, duties and responsibilities reflected in common Article 3 are among the customary international law and treaty-based requirements that apply to detainees of any status. Further, customary and treaty-based human rights law and other customary and treaty-based international laws that, like the laws of war, are part of the constitutionally-based laws of the United States that all members of the Executive branch are bound faithfully to execute also prohibit the use of torture or cruel, inhuman, or degrading treatment against any human being in any context for any purpose. Adoption of the dichotomous scheme perpetuated in the draft military manual will predictably result in violations of international law and the congressional mandate set forth in the McCain amendment.
Since every violation of the law of war is a war crime, denials of customary rights and protections reflected, for example, in common Article 3 of the Geneva Conventions will create criminal responsibility of a universal nature for soldiers involved in interrogation that is violative of common Article 3. Criminal responsibility would also be predictable for superior officers who are derelict in their duty under the knew or should have know test and who tolerate such violations of the laws of war. In fact, because future violations are so foreseeable if the dichotomous denial is perpetuated, one can foresee complicitous criminal and civil responsibility, if not dereliction of duty, for civilian and military creators of a military manual that sets up future criminal denials of law of war rights and protections. Related forms of responsibility are actually evidenced in the President's express authorization of the denial of Geneva law rights and protections contained in his February 7, 2002 memorandum a memorandum that, contrary to Geneva law, authorizes the denial of absolute rights and protections whenever denials are allegedly "appropriate" or "necessary".
President Bush, tear up your military manual!Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston and a former Captain, U.S. Army JAGC and member of the faculty at the Judge Advocate General's School (1969-1973). Several underlying points of law are documented in an article available here.