A Common Article under Uncommon Attack

HOTS went silent in the third week of September when the highly volatile issues related to Common Article 3 of the Geneva Conventions and the use of torture by the US arose. The controversy stunned me – just the fact that there was a controversy. I didn’t know where to start or stop talking about it. My mind raced around searching for what to say and when to say it. I couldn’t believe that the United States of America was debating the use of “alternative” interrogation techniques, such as water boarding, sleep deprivation, coerced standing, constant ear-splitting noise, and prolonged exposure to extreme temperatures, techniques that almost anyone in the free world would regard as forms of torture, techniques prohibited by the recently reissued Army Field Manual. The US was in effect discussing the abrogation of the core of the Geneva Conventions.

When I went through Army basic infantry training in 1969 and Navy officer indoctrination school in 1975 I was taught that the United States follows all four of the Geneva Conventions without hesitation, condition or exception. All my life I’ve watched my country steadfastly support the letter and the spirit of these Conventions, quickly condemning any country that employed any form of interrogation that even bordered on cruel or inhumane. American politicians and citizens of both parties were outraged during the war in Vietnam when the North Vietnamese paraded American POWs through the streets of Hanoi, subjecting them to public rage and ridicule. In those days, we regarded that act as an unacceptable violation of the Geneva Conventions, much less the degrading acts that secretly took place inside the Hanoi Hilton.

One of the few justifications still extant for our preemptive invasion of Iraq is the professed need to overthrow a dictatorial government that systematically employed torture in its military operated prisons. Then, in the midst of that mission of liberation, the United States is suddenly disclosing the existence of secret and previously denied CIA prisons in various countries around the world, countries that conveniently lack legal protections against the use of torture. The captives in those prisons were being brought from the darkness of these secret prisons into the dim light of Guantanamo. But that dim light was light enough for the present administration to profess an urgent need to rewrite the rules of conduct for the detainment of enemy combatants. Suddenly, the United States was at general quarters on a subject that had never before been an issue, and its president was staunchly taking hard line positions that no president before him had considered much less supported.

The president stood before the American people and with his trademark smirk and shrug of shoulders pronounced Common Article 3 of the Geneva Conventions to be unacceptably vague and ambiguous. This Article gets its name from the fact that it is the one article that is common to all four of the Geneva Conventions of 1949 (when the Conventions were last revised). Common Article 3 provides in pertinent part that:

"Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all cases be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth of wealth, or any other similar criteria.

"To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

The president almost ridiculed the vagueness of the references in bold, particularly subparagraph (c), language that has guided democratic governments and their militaries since 1929 when the Third Geneva Convention regarding the treatment of prisoners was adopted. If this language is vague and ambiguous, it is no more so than the United States Constitution prohibition on “cruel and unusual punishment”. Phrases of this nature are written as they are for a purpose – to prevent captives being subjected to treatment at the hands of people who can always find their way around specific limitations on their conduct. Managing ambiguity is one of the skills of leadership.

When the president introduced legislation to cure the problems that he, unlike all other presidents before him, saw in Common Article 3, there was a swift reaction – from Republican leaders. Democrats were outraged, too, of course; but they didn’t matter at a time when the White House and both houses of Congress are controlled by the Rebs. The likes of Clinton, Kerry and Kennedy be damned; but when Senators Warner, McCain, Graham, Collins and Specter speak out, with former Bush administration loyalists, Colin Powell and George Shultz, joining in, then even this president has to slow down for the pause that refreshes.

The Reb rebels quickly went to the heart of the matter. They asked, rightfully so, whether the president’s proposal was an abrogation not just of the Conventions but of American morals and values. Powell said, “The world is beginning to doubt the moral basis of our fight against terrorism. To redefine Common Article 3 would add to those doubts. Furthermore, it would put our own troops at risk.” McCain, reflecting on five long years of torture in Hanoi, said, “This isn’t about the terrorists – this is about us.” All of them said that any unilateral revision or reinterpretation of Common Article 3 by the US would signal a diminished US commitment to human rights, would invite all other countries to do the same, and would put American captives at grave risk. Warner, a staunch defender of the war in Iraq said that our nation’s reputation was at stake.

Major General Scott Black, the senior uniformed lawyer in the Army, took the highly unusual step of writing to Warner and expressing his opposition to the president’s proposed reinterpretation of Common Article 3. No less than five former chairmen of the Joint Chiefs of Staff followed suit, urging Congress not to tinker with the Geneva Conventions. Their primary concern was simple – to protect US servicemen and women from the same treatment that it appeared the President of the United States was willing to employ against our enemies.

The president’s response was to brand these heretofore supporters of his policies in Iraq, supporters who had become voices of dissent on this issue, as having suddenly become morally and intellectually confused. It’s fair to say that I was suddenly confused, but not about what I thought was right or wrong. I was confused about where this country is headed and what it stands for it it could no longer support the values expressed in Common Article 3.

Unfortunately, the debate surrounding Common Article 3 was only half of the controversy. The other half involved whether to charge and bring to trial, and how to conduct the trials of enemy combatants. The central issue in that half of the debate was, again, long-standing American values and principles of justice. More on that and the resulting compromise on all these issues later.