Clarifying Torture

Mr. President, what part of prohibiting "cruel treatment and torture" don't you understand?

At a press conference on Friday, President Bush expressed his displeasure that the Supreme Court of the United States would require his Administration to comply with an international treaty that had been signed by a predecessor and duly ratified by two-thirds of the Senate.

"The Court said that you've got to live under Article III of the Geneva Convention, and the standards are so vague that our professionals won't be able to carry forward the program, because they don't want to be tried as war criminals," declared a clearly annoyed Bush. The President specifically noted that "Common Article III says that there will be no outrages upon human dignity. It's very vague. What does that mean, 'outrages upon human dignity'? That's a statement that is wide open to interpretation."

Actually, to be specific, Article III subclause 3(c) to which the President is referring prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment." But never mind—whatever distinctions might be made between "personal" and "human" dignity, we get the President's point. Human dignity is indeed a notoriously vague concept. But its very vagueness is, in this context, a valuable protection for all prisoners captured during hostilities.

The Convention is aimed chiefly at protecting captured soldiers—either foreign or insurgent. In general, "soldier" is defined by Article IV as people wearing uniforms and openly carrying arms. However, the question of whether or not operatives of Al Qaeda, the Taliban or other terrorist groups qualify is moot because the Supreme Court decided in Hamdan v. Rumsfeld that Common Article III applies to them. The Hamdan decision disallowed the kangaroo court system that President Bush wanted unilaterally to establish for trying alleged terrorists. However, applying Common Article III carries wider implications for the treatment of prisoners held by the military and other federal agencies.

In any case, the vagueness of the phrase "outrages on personal dignity, in particular humiliating and degrading treatment" is a real strength of the Convention, not a flaw. Why? Because those who hold prisoners captured on battlefields everywhere will have to think long and hard about what activities might violate that provision and lead them later to be charged with war crimes. It encourages military and other jailers to err on the side of caution when it comes to their treatment of prisoners. This is a point that Republican Senators McCain, Graham and Warner have made repeatedly—we would want those holding captured American soldiers as prisoners to treat them well physically and with the utmost respect for their rights. Also, the fact that some CIA operatives are buying legal insurance in order to pay for their legal costs should they have to defend themselves in court from accusations that they committed war crimes is evidence that Article III is working as intended.

Common Article III doesn’t just protect the "dignity" of prisoners. President Bush failed to mention that it also prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." The president wants to authorize CIA operatives to use " alternative interrogation procedures" which include such techniques as simulated drowning known as " waterboarding." And however vague the terms "torture" and "violence to life and person" may be, they certainly do include the activities permitted by the Bush Administration's infamous "torture memo." Torture, according to that Justice Department memo "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." I am not a legal scholar, but I believe the type of activities that the memo is describing are clearly torture and clearly violate Article III. Treatment far short of inducing pain equivalent to organ failure would shock the conscience of any civilized person and all Americans would certainly and properly protest if any U.S. personnel were "interrogated" in such a manner.

The President threatened that if Congress persists in trying to limit his ability to authorize "alternative interrogation procedures," aka "torture," that the "program will not go forward." Well, hooray for that.

At his press conference on Friday, the President declared, "It's unacceptable to think that there's any kind of comparison between the behavior of the United States of America and the action of Islamic extremists who kill innocent women and children to achieve an objective." Indeed it is; and by vigorously adhering to and defending the provisions of Common Article 3, the United States would make it clear, as a civilized nation, that any such comparison is now, and will always be, false.

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