On Second Thought, Maybe They Do Apply....

Matt Welch | May 5, 2005

The Pentagon recently turned down the ACLU's Freedom of Information Act request to release visual images of detainee abuse. That's no surprise, but the justification might be -- that it would violate the Geneva Conventions. (Link via the Reporters Committee for the Freedom of the Press.)

Comments

|5.5.05 @ 1:08PM|#

So they do have to treat them as POWs now, right?

"The Geneva Conventions were intended to protect prisoners, not to provide governments with a basis for withholding evidence that prisoners have been maltreated," said ACLU attorney Jameel Jaffer."

I couldn't agree more.

"It's disgraceful that the Defense Department is attempting to contort the Conventions in this way."

I couldn't agree more, assuming, that is, that the part of the Conventions that prohibits the display of prisoners doesn't apply to "enemy combatants".

...I didn't see that it did.

|5.5.05 @ 1:20PM|#

And these are the same people who think the US constitution should be read as written?

Right, no relativistic, interpretive methodology for them - no siree..

R C Dean|5.5.05 @ 2:51PM|#

The bind cuts both ways, folks. On the one hand, the ACLU has been jumping up and down insisting that these people are covered by the Conventions, while on the other hand it just asked the Pentagon to disregard the Conventions and release some pictures regardless.

The official position may well be that these folks aren't covered by the Conventions, but we will extend to them those protections that we can without compromising security. Since the prohibition against publicizing prisoners does not compromise national security, there is no reason to violate it just to please the ACLU.

Just playin' Devil's Advocate, and all.

Matt Welch|5.5.05 @ 3:06PM|#

As I mentioned in my column, privacy concerns could easily be allayed by the creative use of black bars over the eyes....

|5.5.05 @ 3:07PM|#

I believe the "Geneva Conventions" only applied to soldiers of signatory nations, not to anyone held as a prisoner.

|5.5.05 @ 3:37PM|#

I believe the "Geneva Conventions" only applied to soldiers of signatory nations, not to anyone held as a prisoner.

In which case we should be able to see the pictured documenting the crimes of public employees, right?

R C Dean|5.5.05 @ 3:52PM|#

Matt, I'm not sure that the Geneva prohibitions on publicizing prisoners is purely a privacy issue. It may be that it is there in part to remove any temptation to use POWs for propaganda or other purposes, regardless of whether their privacy is abused.

I'm just sayin'. I don't really buy the Pentagon's concern, just as I find the ACLU's position amusingly inconsistent.

Still, if (a) the Conventions prohibit the release of photos like these (and I believe they do, if we assume the Conventions apply here), and (b) there is no exception in the Conventions for redacted pictures (I don't recall one, but if there is an exception that applies, do tell), then what is the justification for blowing off the Conventions in this case?

|5.5.05 @ 4:21PM|#

"I'm not sure that the Geneva prohibitions on publicizing prisoners is purely a privacy issue. It may be that it is there in part to remove any temptation to use POWs for propaganda or other purposes, regardless of whether their privacy is abused."

I'm not sure it's a privacy issue either; in fact, I think the reason for the prohibition against public display is to discourage the ethically challanged from torturing prisoners into public confessions.

...or, as the ACLU attorney said:

""The Geneva Conventions were intended to protect prisoners, not to provide governments with a basis for withholding evidence that prisoners have been maltreated," said ACLU attorney Jameel Jaffer."

If it's done as a function of the prosecution of prison guards for abusing prisoners, I'm not sure the Conventions prohibit publishing prisoner abuse photographs.

|5.5.05 @ 4:23PM|#

I think I must be suffering from Bullshit Fatigue.

When we first started arresting, imprisoning, nut-shocking, and human pyramid-building the people of Iraq, did or did not the Admin/DoD, used to tell the world to "cram the Geneva Conventions up your ass and leave it there" or something similar? Or "this isn't a War so the Geneva Conventions don't apply because you can't be a P.O.W. without the "W" part"? I can't even keep track anymore....

|5.5.05 @ 4:45PM|#

Independent Worm,

It all goes back to Gonzales and the torture memo, according to the Schlesinger Report, that is.

Gonzo decided that they didn't have to apply the Conventions because 1) the prisoners in Guantanamo weren't really "prisoners" in the legal sense, and 2) because acts that were previously considered tortuous weren't really "torture". In his legal opinion, the acts weren't sufficiently extreme.

http://www.npr.org/documents/2004/abuse/schlesinger_report.pdf

Please note the date and executive summary verbiage from the Gonzales Torture Memo when you look for it in the Schlesinger Report.

http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf

Anyway, my read of the Schlesinger Report is that it blames the horror at Abu Gharib on the confusion caused by Rumsfeld's change of torture policy. Rumsfeld changed torture policy on the advice of the Gonzales Torture Memo.

...And yes, Gonzaels was promoted to Attorney General for his incompetent advice. That became less surprising to me after I saw Wolfowitz go to the World Bank after incompetently telling congress that the Iraq War wouldn't cost us any money and after I saw Bolton promoted after incompetently feeding bad intelligence to Colin Powell. In the Bush Administration, apparently, no act of incompetence goes unrewarded.

|5.5.05 @ 5:51PM|#

So Americans have too much respect for the Geneva Conventions to release photos showing how Americans have no respect for the Geneva Conventions. Did these assholes think Orwell was writing a role model, or what?

|5.5.05 @ 7:28PM|#

Matthew, what's with the scare quotes around "Geneva Conventions?"

R C Dean|5.6.05 @ 9:47AM|#

Ken, the ACLU is engaged in a fallacy. It is essentially saying that, when a law, as written, leads to a result we don't like, we will appeal to some unwritten and unprovable "intention" to override the law, as written, to get the result we want.

Its all very well to say that the Conventions weren't intended to provide a shield against accusations of prisoner abuse, but unless that putative intention is reflected in the words of the Conventions themselves, then there is no basis for saying the prohibition doesn't apply in this case.

Assuming the Conventions apply at all (which is what the ACLU has been arguing all along), where is the exception that allows the release of photographs for some purposes but not for others?

I don't care what the ACLU wishes the Conventions said, I am interested in what they actually say. If there is an exception, point us to it. If not, give it up.