Justifying Torture By Sleight Of Hand

The big story today from the Los Angeles Times is that the United States has decided to omit parts of Article 3 of the Geneva Conventions from the latest Army Field Manual on interrogation. The Pentagon has apparently decided to omit the "humiliating and degrading treatment" clause of the Article. This has caused outrage in the Human Rights community. The military’s judge advocates general and the State Department have also fiercely opposed this omission. According to the LA Times, the State Department had argued that this change would be a blow to American standing internationally:

Defense officials said the State Department and other agencies had argued that adopting Article 3 would put the U.S. government on more solid "moral footing," and make U.S. policies easier to defend abroad.

Some State Department officials have told the Pentagon that incorporating Geneva into the new directive would show American allies that the American military is following "common standards" rather than making up its own rules. Department officials declined to comment for this article about the directive or their discussions with the Pentagon.

The focus of the concern about the omission has been on abandoning the part of Article 3 that prohibits "humiliating and degrading treatment". However, the focus should really be on torture instead.

The Geneva exemption is part of a broader effort by the Bush Administration to systematically justify the use of torture by lawyering around the international Conventions that it is signatory to. As I discussed in an earlier post, the United States has already narrowed its definition of "torture" from the definition found in the United Nations Convention Against Torture. The United States has also asserted that when it ratified the Convention Against Torture, it only ratified the "torture" portion of the Convention and not the "cruel, inhuman and degrading punishment" part of the Convention. By narrowing the definition of "torture" and not accepting the remaining portions of the Convention, the United States can now effectively claim that interrogation techniques that do not cause serious injury such as "organ failure" or "even death" do not rise to the level of "torture". Furthermore, since the United States only accepts the "torture" part of the Convention, anything short of the US definition of "torture" does not violate America’s obligations under the Convention Against Torture.

The narrowed United States definition of "torture" has been in place since 2002 when the "Torture Memo" was written by the Justice Department. However, the United States military was still bound by the Army Field Manual, which adhered to Article 3 of the Geneva Conventions. Up until now, only non-military personnel (CIA) were able to take advantage of the narrower definition of "torture" during interrogations. Article 3 still prevented the military from engaging in interrogations that were short of the US definition of "torture" but were caught by Article 3’s prohibition on "humiliating and degrading treatment". Dropping these parts of Article 3 now allows the United States military to engage in behavior that falls under the Convention Against Torture’s definition of "torture" but not under the US definition of "torture". Article 3 of the Geneva Conventions was the last check against a uniform policy of torture that can now be implemented across all branches of the United States government, including the military.

A final obvious but important aspect of the overall torture policy is that acts performed under the narrow definition of "torture" would constitute a crime if committed within the United States where US Courts have jurisdiction. That is the reason why Guantanamo Bay exists.

It is important to call attention to this cleverly disguised attempt by the United States Government to enlist the military in its policy of torture. The Administration would much prefer to debate what constitutes "humiliating" or "degrading" behavior. That is a murky area that the Administration hopes will cloud the real issue. The real issue is on the other side of the interrogation spectrum. The real issue is what constitutes torture. This Administration is playing word games while it pursues a policy of torture. Our moral authority in the world is not the only thing that is being compromised – we as a people are complicit in torture if we allow it to continue.