November 02, 2005

The Article 3 Chronicles...

NYT:

Many officials said Mr. Addington, who helped create the legal framework after 9/11, remains a bulwark in support of those policies, deftly blocking or weakening proposed changes. Nonetheless, the internal politics of those issues have begun to shift in Mr. Bush's second term.

Several architects of the original policies have left the government. Some other senior officials, who had challenged aspects of the policy with limited success, have gained stronger voices in new posts.

Condoleezza Rice, who occasionally questioned the Pentagon's management of Guantánamo when she was national security adviser, has called more forcefully for a reconsideration of some detention policies as secretary of state, a stance generally backed by her successor at the White House, Stephen J. Hadley, administration officials said. The new deputy defense secretary, Gordon R. England, has also been an influential advocate for reviewing the detention policies within the Pentagon, officials said.

"The results may not be very different, but the discussions have changed," a senior military lawyer said. "And there are more discussions."

Since President Bush's decision in February 2002 to set aside the Geneva Conventions in fighting terrorists, government lawyers have debated what legal framework should apply to combatants in a struggle that the administration argues does not fit into the categories of international violence contemplated by the 1949 conventions.

Lawyers at the State Department raised the issue repeatedly, officials said. But because the department opposed the president's original decision to put aside the conventions, the efforts of its lawyers were largely dismissed as attempts to revive a question that had already been decided, they added.

Beginning late last year, Defense Department lawyers took up the issue as they revised Directive 23.10, the "DoD Program for Enemy Prisoners of War and Other Detainees." A roughly 12-page draft of the directive, which began circulating in the Pentagon in mid-September, received strong support from lawyers for the armed services, the military vice chiefs and some civilian defense officials, several officials said.

"The uniformed service lawyers are behind the rewrite because it brings the policy into line with Geneva," one senior defense official said. "Their concern was that we were losing our standing with allies as well as the moral high ground with the rest of the world."

Following one of the recommendations of the Sept. 11 commission, the draft, written by officials in Mr. Waxman's office and military lawyers, lifted directly from Article 3 of the Geneva accords in setting out new rules for the treatment of terrorism suspects, three officials who have reviewed the document said.

Common Article 3, as the provision is known, sets out minimum standards for the treatment of captured fighters and others in "armed conflicts not of an international character." Although President Bush determined in February 2002 that the article was not relevant to Al Qaeda or the Taliban because of its international focus, the Sept. 11 panel noted that it "was specifically designed for those cases in which the usual laws of war did not apply."

The draft Pentagon directive adopted the language of Common Article 3 "as a matter of policy rather than law," one defense official said. Even so, the Geneva reference was opposed by two senior Pentagon officials, Stephen A. Cambone, the under secretary of defense for intelligence policy, and, William J. Haynes, the department's general counsel, defense officials said.

Mr. Addington, who has been a close bureaucratic ally of both defense officials, soon called Mr. Waxman to the Old Executive Office Building to brief him and Mr. Libby on the directive. Two defense officials who were told about the meeting said Mr. Addington objected to phrases taken from Article 3 - which proscribes "cruel treatment and torture," and "outrages upon personal dignity, in particular murder of all kinds, mutilation, humiliating and degrading treatment" - as problematically vague.

"We may know what they mean in the United States," one senior administration official familiar with the debate said of the Geneva terms. "But views around the world may differ from ours. Having a female interrogator even asking questions of a male might be humiliating to some parts of the Muslim faith."

Another official said Mr. Addington and others also argued that Mr. Bush had specifically rejected the Article 3 standard in 2002, setting out a different one when he ordered that military detainees "be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

Only when the dispute is resolved, defense officials said, would the Pentagon conclude the drafting of the second directive, known as 31.15, on the interrogation of prisoners including terrorism suspects. That document, in turn, would make possible the publication of a roughly 200-page Army manual for interrogations that was virtually completed last spring, officials said.

"If we don't resolve this soon," one defense official said, referring to the overlapping debate over Senator McCain's proposal, "Congress is going to do it for us."

More:

A central player in the fight over the directive is David S. Addington, who was the vice president's counsel until he was named on Monday to succeed I. Lewis Libby Jr. as Mr. Cheney's chief of staff. According to several officials, Mr. Addington verbally assailed a Pentagon aide who was called to brief him and Mr. Libby on the draft, objecting to its use of language drawn from Article 3 of the Geneva Conventions.

"He left bruised and bloody," one Defense Department official said of the Pentagon aide, Matthew C. Waxman, Mr. Rumsfeld's chief adviser on detainee issues. "He tried to champion Article 3, and Addington just ate him for lunch."

Despite his vehemence, Mr. Addington did not necessarily win the argument, officials said. They predicted that it would be settled by Mr. Rumsfeld after consultation with other agencies.

But while advocates of change within the administration have prevailed in a few skirmishes, some of those officials acknowledged privately that proponents of the status quo still dominate the issue - partly because of the bureaucratic difficulty of overturning policies that have been in place for several years and, in some cases, were either approved by Justice Department lawyers or upheld by the federal courts.

"A lot of the decisions that have been made are now difficult to get out of," one senior administration official said.

A spokesman for the vice president, Stephen E. Schmidt, said Mr. Addington would have no comment on his reported role in the policy debates. A Defense Department spokesman, Bryan Whitman, also would not discuss Mr. Waxman's role except to say it was "certainly an exaggeration" to characterize him as having been bloodied by Mr. Addington.

I've heard Waxman is a very bright guy (if quite a bit younger than Addington). So I'm sure he can more than hold his own. It would be nice, however, to see Condi and Hadley and England weigh in more. If Rumsfeld is ultimate arbitrer, I think I know where the decision point ends up. Over in 'cabal'-zone, of course. More on all this soon, and don't miss a somewhat related story here. As I said, we'll be analyzing the whole proposed Artice 3 lift in more detail. Remember, Addington and Cambone and Haynes and ostensibly Cheney are fighting this Geneva language insertion even though it's only a policy directive (not necessarily legally binding) and doesn't even apply to detainees in CIA custody (another problem, as the related story link showcases). Recall too, the uniformed service lawyers are for the rewrite--as they better understand the harm this is doing to us in the war on terror. The costs outweigh the perceived benefits. Big time, you might say. But they need a major ally in the Adminstration to tip the scales. Could it be Condi/Hadley (with assorted DoD allies, particularly in the brass), squaring off on an issue of national import with Rumsfeld and Cheney? I am doubtful, but hope remains alive, and McCain has put some wind in the sails...

Have there been any studies of the efficacy of the Cheney/Rumsfeld policy toward detainee treatment?

The problem, as i see it, is that by creating a "policy" that permits a certain level of abuse, one encourages the indiscriminate abuse of prisoners, and lowers the bar considerably in terms of what is considered "acceptable" treatment of the average prisoner.

To me, the "solution" to the torture/abuse issue is to prohibit it officially --- but to allow it to happen as long as the "abuser/torturer" feels that the information to be gleaned is so critical that he is willing to give up his own career/freedom/life in order to get that information. In other words, prohibit it, allow it to happen, and then prosecute it to the fullest extent of the law. Such an approach would, imho, result in torture/abuse being an extremely infrequent occurence.

Posted by: lukasiak at November 2, 2005 02:33 PM | Permalink to this comment

Condi seems to be the go along to get along type. Don't expect her to take any stands against cheney and rumsfeld any time soon.

Posted by: Tom wright at November 3, 2005 05:14 AM | Permalink to this comment

The NYT article incorrectly implies that Bush's position on the applicability of Article 3 differs from that of the 9/11 Commission.

Here's the 9/11 report:

Those Conventions establish a minimum set of standards for prisoners in internal conflicts. Since the international struggle against Islamist terrorism is not internal, those provisions do not formally apply, but they are commonly accepted as basic standards for humane treatment.

Posted by: PD Shaw at November 3, 2005 06:31 AM | Permalink to this comment

That was the policy adopted by the Israeli courts, and a wise solution to the "ticking bomb" dilemma. So far, I believe, the Israelis have never come across a case where the vital necessity of torture was proved.

Posted by: Alexei McDonald at November 3, 2005 03:59 PM | Permalink to this comment

testing SCode... - please disregard

Posted by: tom Eberle at November 4, 2005 01:00 PM | Permalink to this comment

Lukusiak,
Sunday's New York Times carried a story about Ibn al-Shaykh al-Libi. This was a guy who was tortured per Bush/Cheney policy sometime in 2002. Under the duress of torture he "confessed" that Iraq had trained al qaeda to use WMD.

The "confession" was one of the key pieces of "evidence" used by the NRO/AEI/NEOCON/Bush Admin. warmongerers to justify an immediate invasion of Iraq. In typical dishonest fashion they (e.g. shills like Dan Darling) still spout off the name al Libi to back the assertion that an Iraq/al qaeda connection existed pre-invasion.

Now, it seems the DIA knew all along that there was nothing to corroborate the al Libi story and there was much reason to doubt it.

However, since al Libi's story pleased those chomping at the bit to bless the Middle East with "creative destruction" the DIA's objections were silenced. The Bush admin. submitted to the world the case that Iraq and al qaeda were working together on terrorism involving WMD.

The point being that the "solution" you propose would only work *if* the people in charge were reasonable and relatively objective.

When you have a pack of dangerous fanatics in charge, when you have men with criminal records in your administration, men accustomed to beating the rap by hook or by pardon, when you have an important segment of your defense intelligence and propoganda machine dedicated to reshaping an entire region of the globe by military force, then I don't see how the restraints, such that they are, within your proposal would work.

Posted by: avedis at November 7, 2005 10:23 AM | Permalink to this comment