In a spirited give and take during the Friday Sept. 15 2006 press conference, reporters asked Bush about passing a bill to redefine (or more clearly define) Common Article III of the Geneva Conventions. Bush asserts that it is "vague" and wants more language "spelling out the rules". My ear immediately picked this up, and I thought of at least two concerns this raises, along with underlying issues - One is that it is an attempt to purposly create loopholes, and second is that concentrating on specifics may mean that Bush and his lawyers don't understand the general....
Excerpt From this thread
http://www.dailykos.com/...
Article II excerpt
in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms...shall in all circumstances be treated humanely...
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons
...
c) Outrages upon personal dignity, in particular, humiliating and degrading treatment
Bush takes the point of view that Article III is too vague, thus the people who will be asked to operate under it will be confused, and refuse to perform (i.e. are they refusing a lawful order?). I'll get to the loophole issue second, but first let me raise the issue of the "vagueness" problem.
Outrages upon personal dignity, in particular, humiliating and degrading treatment
This reminds me of Justice Potter Stewart (I think) who famously said about obscenity "I can't define it, but I know it when I see it" (or something like that). Since Bush is such a black and white, no shades of gray kind of guy, I can understand how this causes him pain. The writers of this particular section did not make a laundry list because they felt (my interpretation) that everyone who was civilized would know "outrages upon personal dignity" when they saw it. A decision about what torture is, and what are "outrages..." is a judgement that calls upon anyone who is in a position to make it to call on their humanity, their sense of what a civilized society means, their understanding of social conciousness, their religious and moral understanding and the role of law in society. If this were all just a list of prohibitions, who would need a judge?
It seems to me that anyone who can't understand that sometimes a bit a vagueness (in this case making it clear that others will judge you if you cross a boundary, and you need to be smart enough to think about what the boundary is before you act) is not a bad thing. It would be nice if human interactions were always clear and predictable, but they aren't.
So, my take on this aspect of the Article III issue is that Bush and his lawyers, in spite of Bush's religiousity, are unable to understand how it is that the rest of the world, especially those danged Europeans (in the Hague, say), might take waterboarding and beating until dead with a little more gravitas than Gonzales and John Yoo.
Members of congress might need to be thinking about this too:
Jordan Paust of the University of Houston Law Center says that minimum due process guarantees under customary international law must not be denied when Congress attempts to articulate forms of procedure for new US military commissions...
http://jurist.law.pitt.edu/...
"War crimes policies and authorizations are not merely a threat to constitutional government and our democracy. They threaten law and order more generally, violate our common dignity, degrade our military, place our soldiers and CIA personnel in harms way, thwart our mission, and deflate our authority and influence abroad. They can embolden an enemy, serve as a terrorist recruitment tool, lengthen social violence, and fulfill other terrorist ambitions.
Additionally, Congress should not attempt to provide domestic immunity for criminal violations of rights and protections contained in the Geneva Conventions. Tin-horn dictatorships attempt such forms of impunity, but the attempt would itself violate several treaties of the United States and (as Marcos, Milosevic, Noriega, Pinochet, various Argentinian generals, and others learned) have no legal effect abroad in foreign or international fora. Instead, Congress should protect the honor of the United States and maintain the rule of law."
Now on the Second issue : From Tony Snow
Tony Snow press conference up at E&P
http://www.editorandpublisher.com/...
Q What are other countries to make of the U.S., as you put it, adding definition to the Geneva Convention? Is the U.S., in effect, saying, all the rest of you do this, too -- adversaries and friends, alike?
MR. SNOW: Look, I think this is something that we'd be -- we would not be frightened if adversaries did this. We would not be at all frightened if they did this.
I think there's a perception going around that this is going to condone and counsel all sorts of horrible treatment. It's not. And therefore, if we allow -- if we set a standard to treaty obligations that in the past have been vague -- and again, we did it with genocide; we did it with other things. This is not unusual. And I think what we're doing is setting a standard for clarity and transparency, because we do want people to know what the rules are, and the people we especially want to know what the rules are are our people going out in the field who are going to be charged with trying to bring back information and save American lives. We want it to be legal. We want it to be constitutional. We want it to be consistent with Common Article III.
Do we get better, prosecutible, behaviour if we list out the things that the CIA, FBI and the Boys at Gitmo can't do?
One of the things that happens as soon as you make a list and say "here's the list of things you can't do" is that implictly anything not on the list - is not prosecutable. Thus, the real effect is to weaken the forcefullness of the rule.
"What? it doesn't say on here that drilling holes in prisoners with electric drills is prohibited? Ok then, move along. Sorry to bother you..
Tony's assertion that, as long as we can redefine Common Article III, it's OK for others to do it too (adversaries) and that essentially guts Article III completely, and General Powell's assertion that this would place American Prisoner in Grave Danger (my words) is exactly right. I was USAF during the Vietnam war, and we were familiarized with both the UCMJ and the Geneva Conventions. Believe me, you don't want to find yourself in an unfriendly prison with the gloves off - just ask John McCain.
In my opinion, the Administration is starting to realize that members of Congress, many in the administration, and many in the Armed Services could be charged with war crimes. It's something that should have been thought of before the reckless kidnap and torture programs got started in the first place.
I may not have a list of "Outrages Upon personal Dignity", but I know it when I see it. If our leaders can't see that, they are morally unfit to be leaders.