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Defending the Country is Hard

Posted By Conn Carroll On May 8, 2009 @ 12:03 pm In Security | Comments Disabled

The Washington Post reports today [1]:

Intelligence officials released documents this evening saying that House Speaker Nancy Pelosi (D-Calif.) was briefed in September 2002 about the use of harsh interrogation tactics against al-Qaeda prisoners, seemingly contradicting her repeated statements over the past 18 months that she was never told that these techniques were actually being used.

The issue of what Pelosi knew and when she knew it has become a matter of heated debate on Capitol Hill. Republicans have accused her of knowing for many years precisely the techniques CIA agents were using in interrogations, and only protesting the tactics when they became public and liberal antiwar activists protested.

We sympathize with Pelosi’s predicament. Having the courage and wisdom to make the right calls on questions of national security, and then stand behind them, is hard. Especially in an area with as little concrete guidance as detainee treatment. Heritage scholars David Rivkin, Lee Casey and Charles Stimson explain [2]:

The Geneva Conventions loom large over U.S. terrorist detainee policy—even when the conventions may not strictly, as a matter of law, apply. In addition to their legal force, the conventions carry the weight of moral authority. It is no small matter, then, to question whether U.S. detention efforts fall short of the standards of Article 3—an article that is common to all four Geneva Conventions (hence its designation as “Common Article 3,” or CA3).

According to the actual language of CA 3, detainees “shall in all circumstances be treated humanely,” but the term humanely is never defined. “[O]utrages upon personal dignity, in particular humiliating and degrading treatment,” are strictly prohibited, whatever they may be. Also prohibited are “cruel treatment and torture,” but again, there is no definition of these terms. CA3 is a good statement of principles, but aside from banning murder and hostage-taking, it provides no concrete guidance to anyone actually holding detainees.

Nonetheless, CA3 is a part of U.S. treaty and criminal law. Congress, in the 1999 amendments to the War Crimes Act, made it a crime to violate CA3. For certain acts, such as murder, taking hostages, and obvious acts of torture, the prohibited conduct should be clear, since Congress has defined the elements necessary to prove these crimes in statutory law.

But what exactly constitutes “outrages upon personal dignity, in particular humiliating and degrading treatment”? No universal or even national consensus as to the definition of these terms exists. There is, however, no doubt that what constitutes humiliation or degradation, as distinct from acceptable treatment, is highly context-specific and culture-dependent. For example, any custodial interrogation or incarceration entails elements of humiliation that would be unacceptable in other contexts. Likewise, some societies find placing women in a position of authority, as guards or interrogators, over detained individuals unacceptable; for other cultures that believe in basic gender equality, these practices are not even remotely humiliating. Even Jean Pictet, the world-renowned human rights attorney who helped draft the Geneva Conventions and led the International Committee of the Red Cross, noted that with respect to CA3, the drafters wanted to target those acts that “world public opinion finds particularly revolting.” This is a highly uncertain guide.

So apparently, Speaker Pelosi does put the interests of national security first when not being pressured by leftist organizations to do otherwise. Rather than concoct numerous stories in an attempt to deny this, the Speaker should be proud of her thoughtful analysis on behalf of America’s security.


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URL to article: http://blog.heritage.org/2009/05/08/defending-the-country-is-hard/

URLs in this post:

[1] reports today: http://voices.washingtonpost.com/capitol-briefing/2009/05/cia_says_pelosi_was_briefed_on.html

[2] explain: http://www.heritage.org/Research/LegalIssues/wm2303.cfm

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