The Bush Administration "Agrees" to Treat Detainees in Accordance with the Geneva Conventions

The blogs are all abuzz with the news that the Bush administration has decided to abide by the Geneva Conventions in its treatment of detainees in the war of terror (no, that's not a typo).

But before you get all excited, like I did, take note that Bush is still talking about "fixing" the military tribunal system that the Supreme Court said was illegal; and he has been vague about the specifics of what "complying with the Geneva Conventions" means to him. Given Tony Snow's claim that nothing about the Bush administration's detainee treatment policy has changed, because "detainees are already being treated humanely," Bush's refusal to get specific does not bode well.

Jack Balkin suggests we pay close attention to that choice of language. "Humane treatment," in the Bush dyslexicon, does not necessarily mean "treatment in accordance with Common Article 3 of the Geneva Conventions."

As discussed here, even under the President's directive of "humane treatment," DoD General Counsel Jim Haynes advised the SecDef that the following techniques "may be legally available":

-- forced nudity

-- forced grooming

-- "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress"

-- 20-hour interrogations

-- stress positions

-- the use of mild physical contact such as grabbing, poking and light pushing

-- waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and

-- "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

Moreover, as I discussed here, the DoD Schmidt report concluded that concededly degrading and humiliating techniques did not violate the humaneness requirement! -- including forcing a detainee to wear a bra and have a thong placed on his head during interrogation; tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks; forcing him to dance with a male interrogator; stripping him maked; placing Korans on a television "as a control measure"; and pouring water on the detainee during interrogation --17 times.

If this is what the Administration thinks Common Article 3 allows, it is dreadfully wrong, and we're being sold a bill of goods. Common Article 3 provides, in no uncertain terms, that "[t]o th[e] end" of ensuring humane treatment, certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"-- including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment."

In other words, many techniques that were not prohibited by the President's "humane treatment" directive (as a result of a very unnatural intepretation of the word "humane") are prohibited by Common Article 3, including all humiliating and degrading treatment, and other "outrages upon personal dignity." This is something that the Administration should be required to address directly, if its new directive is to be worth anything.

Faiz at Think Progress sees an ulterior motive in the timing of this policy change:

The Financial Times reports this morning that the Pentagon, guided by General Counsel William Haynes, recently reversed course and decided that all detainees held in U.S. military custody are entitled to protection under the Geneva Conventions. The timing of the announcement appears in part to have been guided by an administration effort to build support for Haynes, whose nomination to sit on the 4th Circuit was taken up by the Senate Judiciary Committee today.

Haynes -- who is strongly backed by Vice President Cheney -- has been described as a "prime mover" in the effort to contravene the dictates of the Geneva Convention with respect to the interrogation of prisoners. A 2003 working group appointed and supervised by Haynes argued the Geneva Conventions "must be construed as inapplicable to interrogations undertaken pursuant to [Bush's] Commander-in-Chief authority." That position, as applied to military commissions, was repudiated by the Supreme Court in the recent Hamdan decision.

Andrew Sullivan agrees with Faiz about the timing:

The decision by the Pentagon to formally abide by the Supreme Court ruling in Hamdan must, however, be seen in context. The critical context is today's nomination hearings of Jim Haynes for a lifetime appointment to the U.S. Court of Appeals for the Fourth Circuit. Haynes made the Pentagon announcement; and Haynes, when he worked as general counsel for president Bush, was instrumental in the endorsement and enabling of torture. When Haynes was in the White House in November 2002, he endorsed the following list of "interrogation techniques" for use by the military and CIA:

"forced nudity; forced grooming; "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress"; 20-hour interrogations; stress positions (i.e. haning from wrists from the ceiling); waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation); and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

Haynes, by all accounts, is a genial fellow who simply told the president what he wanted to hear. But no man who has endorsed waterboarding as an interrogation technique should be allowed near a federal bench. War criminals cannot be judges. The Senate must deny Haynes a "reward" for following the law. If Hamdan hadn't forced his hand, torture would still be policy. You don't reward such criminals; you ostracize them and keep them for ever from public office. One further caveat: we still have no assurance that the CIA won't still be authorized to torture in secret sites beyond our purview. we know how deeply attached Cheney is to the torture policy. He may still be trying to find a way to get around the law, as he has so doggedly in the past. We have every reason to be thrilled this morning, but history cautions skepticism as well.

For more on Haynes' complicity in torture, see posts by Marty Lederman here and here, and Jane Mayer's piece here.