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Bench Memos

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Torturing Texts



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In today’s Washington Post, retired Marine commandant P.X. Kelley and law professor Robert F. Turner find fault with an executive order published by the Bush White House last week, interpreting Common Article 3 of the Geneva Conventions.  Their conclusion is that “the president has given the CIA carte blanche to engage in ‘willful and outrageous acts of personal abuse’” against detainees held for interrogation in the war against Islamist terror organizations.

Kelley and Turner are serious people who have gone astray in this instance.  The only reason any article of Geneva can be said to apply to terrorist detainees is because of the willful misreading of the conventions by Justice Stevens in the Hamdan case a year ago–a ruling that Kelley and Turner accept uncritically.  The White House would have been justified in ignoring the Hamdan ruling outright, as Lincoln rightly ignored Ex parte Merryman in 1861.  Presidents nowadays don’t like to play constitutional chicken, however, so the Bush administration is making the best of Hamdan with this executive order, which attempts to deal with a class of people not within the contemplation of Common Article 3 properly understood.

Common Article 3, written for non-international conflicts such as civil wars, forbids “humiliating and degrading treatment” of captives in such wars who are not soldiers in the national armies of high contracting parties to Geneva, but who are otherwise comporting themselves within the laws of war governing the wearing of uniforms, unit discipline, and proper treatment of civilians.  The article gives them what amounts to near-POW status; hence the broad language against “humiliating and degrading treatment.”

Now consider our terrorist enemies.  By their nature, the interrogation techniques legitimately employed in their cases will involve some measure of humiliation and degradation.  This is not torture, nor is it even cruelty or outrage.  It is not even necessarily “abuse” as ordinarily understood in physical terms.  But psychological techniques of shaming, for instance, are par for the course in detainee interrogations.  So much the better if they yield results.

The Bush executive order forbids “willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency.”  This much Kelley and Turner quote, and their parsing of it, as already quoted above, is that “the president has given the CIA carte blanche to engage in ‘willful and outrageous acts of personal abuse.’”

But this misunderstands the text of the order, I think.  A more natural reading of it would be that all “willful and outrageous acts of personal abuse” are hereby forbidden, and the remainder of the sentence defines how we are to understand the willful and outrageous.  The door left open by the order is the one that would permit milder forms of humiliation–an extremely useful, even routine, tool in such interrogations–that would not offend any reasonable person under the circumstances.

In which case . . . never mind.



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