Friday, January 23, 2009

Executive Order: Conflating Soldiers and Terrorists

Cross Posted by Shane at

President Barack Obama has begun issuing executive orders, leaving his followers suspended in rapturous expectation that all of their liberal wishes will be granted. One of the most anticipated was his executive order outlawing 'torture' of prisoners captured by American soldiers and agents. The order is titled "Ensuring Lawful Interrogations", and states:

By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:

Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order. Upon request, the Attorney General shall provide guidance about which directives, orders, and regulations are inconsistent with this order.

It stipulates:

Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.

The Army Field Manual is a set of instructions and directives that assist the combat soldier in the field; it is written for those with little expertise in interrogation who find themselves having to question prisoners during war. Contradictions between the Manual and the Geneva convention notwithstanding (I'll talk about that below), we are insisting our interrogation professionals (CIA?) abide by regulations written for novices and applied to battle field conditions. A study of the field manual will find many admonitions against mental and physical torture, while exhorting interrogators to obey strictly all conventions against torture and the rules regulating the treatment of prisoners of war. So what is a prisoner of war? The Geneva Convention, of which we are a signatory to, defines it in article four as:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

How does a terrorist, dressed in civilian clothing and killing indiscriminately, fulfill the qualifications to be covered by the convention? The rules of war are meant to secure some deference to morality in an atmosphere of bloodlust, but terrorists use the convention to augment their murderous designs; this is why President Bush designated them as "enemy combatants" instead of the "prisoners of war" recognized by the Geneva Convention. President Obama, by insisting that terrorists be covered by the convention regardless of their adherence to it is in effect erasing the line between the soldier and the terrorist, offering the notion there is no difference between the two. But there is a difference - terrorists aren't accountable, and make cities their battlefield and civilians their focus of attack. What impetus have they to adhere to the Geneva Convention's rules if are rewarded for flaunting them? Incredibly, the Third Geneva Convention states that those who refuse to answer questions "may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." How can any government protect its citizens against terrorism if no kind of pressure can be used to question a terrorist about impending attacks? How broad are we to interpret "unpleasant" or "disadvantageous"?

According to our current president's executive order, all "Interrogation techniques, approaches, and treatments described in the [Army Field Manual 2.22 3] shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes." But according to the third Geneva convention, which outlaws 'threats, insults or exposure to unpleasant or disadvantageous treatment of any kind', many of the techniques outlined in the manual are obviously forbidden, such as "Fear up", "Pride and Ego" or "Emotional Futility" because they certainly meet the threshold of being "unpleasant." Even those techniques such as good cop/bad cop prove "disadvantageous" by the nature of the duplicity utilized. If we are to follow President Obama's order explicitly and without contortion, America's interrogation of terrorists plotting against this country is limited to name, rank, and serial number. Any information beyond that must be acquired without "unpleasant" or "disadvantageous" pressure being used.

President Barack Obama said in his Inauguration speech:

Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.

My fear is that our president actually believes this. Does he really think that the fight against organized terrorism would be over by now but for our solitary use of missiles and tanks? Does he really think anyone, after 9/11, thinks our power alone can protect us? If we did what we pleased, why are we paying more than a few cents a gallon for gas? And how can security emanate from the justness of our cause? The Jews 'just cause' did not save them from the Nazis. The 'just cause' of the south Vietnamese didn't protect them from slaughter by the communists. The women of Iraq weren't spared the rape rooms of Saddam Hussein because of the 'justness of their cause.' Justice is found often assailed by tyrants and denied by dictators, and so often in our recent history have we seen that it can only be saved by a force of arms united in agreement that Justice is worth fighting for. Civilized nations that understand the need for conventions against torture need not be tempered by humility and restraint, they hold themselves to a reasonable standard made inviolable by reason of their own humanity. It is our enemies that need show humility and restraint. If we are unwilling to take seriously our 'just cause' against Islamic extremism, and ignore the difference between our soldiers and their terrorists... we are doomed.

©2007-2012copyrightMaggie M. Thornton