CommentaryBen Davis [University of Toledo College of Law]: "Alberto Gonzales has said that one of the reasons the Administration departed from the Geneva Conventions in early 2002 was to provide more "flexibility" to the President. This week, some of the ironies of the Military Commission Bills of the President and Senators McCain-Warner-Graham are (1) the rejection of the flexibility of the Geneva Conventions, (2) the proposal of definitions of specific offenses as war crimes to the presumed exclusion of others, and (3) the requirement of interpretation of this law to not take into account any foreign sources of law.
Section 8 of the McCain-Warner-Graham bill, entitled Revision to War Crimes Offense Under Federal Criminal Code, proceeds to specify definitions of torture, cruel unusual or inhumane treatment or punishment, performing biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages. It also makes foreign sources of law inapplicable to interpretation of these provisions.
In contrast, the language of Common Article 3 of the Geneva Conventions prohibits:
"(c) outrages upon personal dignity, in particular humiliating and degrading treatment;"
Section 8 is specific in an effort to give flexibility. Common Article 3 is flexible but with another goal. As is noted in the International Committee of the Red Cross Commentary to Common Article 3:
At one stage of the discussions, additions were considered — with particular reference to the biological "experiments" carried out on detained persons. The idea was rightly abandoned, since biological experiments are among the acts covered by (a). Besides, it is always dangerous to try to go into too much detail — especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible, and at the same time precise. The same is true of item (c). (my bolding).The effort of the drafters of the Military Commissions Bills is to create a rule under which state actors are permitted to imagine, authorize and use with impunity a pallet of techniques that are not prohibited. There is no limit to what bestial instincts can imagine that might fall between the interstices of the specific offenses noted. One should not assume they have a conscience to be shocked. The effort of the drafters of Common Article 3 was to operate in the opposite manner, to create a rule of flexible protection of detained persons that has a chilling effect on overzealous coercive interrogators.
We should not allow Military Commission Bills to pass that reduce that flexible protection of persons who are detained because we are then left to trust the conscience of the interrogators – something history has shown and the drafters of the Geneva Conventions well understood was a poor bulwark against human depravity. Let us not be forced to relearn again this painful history. Whether it is the McCain-Warner-Graham "Good Cop"(!) or the Administration "Bad Cop" version, these versions shock the conscience and should be removed."
