July 11, 2006

Article 3

Hatched by Dafydd

So today's media-driven episode of Bush Derangement Syndrome is the fallacious claim that, in some dramatic turnaround, the Bush administration now finally "admits" that terrorists are prisoners of war, entitled to the full protection of the Geneva Conventions as POWs -- including the right never to be interrogated. For example:

  • AP: U.S. Will Give Detainees Geneva Rights

    The Bush administration, called to account by Congress after the Supreme Court blocked military tribunals, said Tuesday all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to protections under the Geneva Conventions....

    The policy, described in a memo by Deputy Defense Secretary Gordon England, appears to change the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections.

  • Reuters: US applies Geneva Convention to military detainees

    The Pentagon acknowledged for the first time that all detainees held by the U.S. military are covered by the protections of an article of the Geneva Conventions that bars inhumane treatment, according to a memo made public on Tuesday.
  • New York Times: In Big Shift, U.S. to Follow Geneva Treaty for Detainees

    The Bush administration called today for Congress to fix, rather than scrap, the system of military tribunals that was struck down by the Supreme Court last month, while the Pentagon pledged to treat detainees in accordance with the Geneva Conventions as the court required.

But as Ryan Sager [whoops, make that Jed Babbin... sorry, Jed!] at Real Clear Politics noted (I thought the same thing, but Babbin was there first), this is being completely -- and I (not Babbin) claim deliberately and with malice aforethought -- misreported by the antique media... because in fact, Deputy Defense Secretary Gordon England, who wrote the memo on July 7th, did not make any "shift" in U.S. policy; he quite openly proclaimed that this has been administration policy from the beginning: to apply specific elements of Article 3 to detainees in the war against jihadi terrorism.

There is certainly a danger, which Big Lizards recognized earlier, that subsequent and iterative federal court rulings may lunge further than the Hamdan decision and try to declare the detainees full-blown "prisoners of war." In fact, it appears that Justice John Paul Stevens, leading the pack of braying liberals on the Court, tried to do exactly that. If this happens, it will have catastrophic results in the GWOT.

But that is not what this memo does.

So we don't proceed in a vacuum, here is the relevant text:

The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.

It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 and, therefore, actions by DoD personnel that comply with such issuances would comply with the standards of Common Article 3. For example, the following are consistent with the standards of Common Article 3: U.S. Army Field Manual 34-52, “Intelligence Interrogation,” September 28, 1992; DoD directive 3115.09, “DoD Intelligence Interrogation, Detainee Debriefings and Tactical Questioning,” November 3, 2005; DoD Directive 2311.01E, “DoD Law of War Program,” May 9, 2006; and DoD Instruction 2310.08E, “Medical Program Support for Detainee Operations,” June 6, 2006. In addition, you will recall the President’s prior directive that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.

You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices, and procedures under your purview to ensure that they comply with the standards of Common Article 3.

This is followed by a quotation of Article 3 of the 1947 conventions, which you may read for yourself here.

The most relevant sentence in the entire memo is the first sentence of the second paragraph, in which England makes plain that the administration's position is that currently existing DoD procedures already comply with Article 3; thus, except for the rules of military tribunals, there is no reason to change policy. Far from being a "big shift," England argues that this is what President Bush has been doing all along.

Note also how he answers the specific worry that Big Lizards enunciated earlier: that this ruling might lead to further rulings banning any interrogation at all of al-Qaeda "POWs," in accordance with other articles of the Geneva Conventions. For example, from Article 17 of those same conventions:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

If the courts were ever to rule that terrorist detainees were to be given all the rights and privileges of POWs, then Article 17 would apply -- and all interrogation of al-Qaeda detainees of any kind would have to cease the moment the detainee said "I refuse to answer." Instead, all we would be allowed to insist upon was his "surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information."

In England's memo, he makes as crystal the administration's position that detainees are not "prisoners of war." The AP story is flatly wrong. If, as AP claims, the memo "appears to change the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections," then how does AP read the next sentence in the second paragraph -- where England specifically notes that the DoD's policies anent "Intelligence Interrogations" are legal?

In addition, Article 21 begins thus:

The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.

That means, I believe, that they cannot be held in separate cages or prevented from assembling together and speaking privately -- as we currently do at Guantánamo Bay and likely every other terrorist detainment facility we operate. Again, if the courts started holding that terrorists were POWs, we would have to release them internally within Guantánamo to roam around freely within the camp, conspire together, and coordinate false answers to intelligence interrogations we wouldn't be allowed to conduct in the first place.

You cannot in the same breath say that al-Qaeda detainees are "prisoners of war" and also that we can engage in lengthy interrogations of them, treat them harshly to break them down, and deprive them of privileges if they don't answer or if they lie. There is no rational way that the reporters for the elite media could possibly have read the memo and actually come away with the misunderstanding that from now on, terrorists were POWs. Thus, any reporter who says such a thing is simply lying, as is the editor who allows him to publish.

Some people argue we should "never attribute to malice what can adequately be explained by stupidity." But in many venues, the precise opposite is more true: never attribute to stupidity what can adequately be explained by malice.

Though it may comfort some to think so, reporters and editors at top media sources are not imbeciles. Bill Keller and Dean Baquey did not blow the NSA al-Qaeda intercept program and the terrorist-finance tracking program because they were ignorant; they, along with the reporters they edit, blew those programs (in the New York Times and the Los Angeles Times, respectively) because they hate those programs, they hate the war, they hate Bush, and they want America to lose.

Don't get me wrong, I do not question their patriotism; I nakedly say they have none. They hate Republicans and the president so intensely, it becomes an exquisite experience. It easily overwhelms whatever feeble love for country still remains after decades of relentless liberal brainwashing. As Churchill (Winston, not Ward) said, they swim in currents of hatred so strong, it sears their very souls.

So lying about some sort of flip-flop on the part of George W. Bush is a mere trifle, a bagatelle to the MSM. That's the one they do "twice on Sundays."

Thus, when you read the inevitable flood of stories sneering that Bush has surrendered, that he's been made to eat crow, that the administration has undertaken a "big shift," a turnaround, a 180 -- just bear in mind what you already know about the "lies and the lying liars who tell them" in the nation's newspapers, on television, and especially in the liberal blogs.

There is no policy change here: Deputy Defense Secretary Gordon England has simply reiterated that administration policy already complies with the specific demands of Geneva that apply to non-POWs... with the one exception of the specific procedures to be followed by the military tribunals.

Hatched by Dafydd on this day, July 11, 2006, at the time of 2:54 PM

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Tracked on July 12, 2006 10:33 AM


The following hissed in response by: Bill Faith

Excellent analysis, Dafydd. Best I've seen yet. I've added an excerpt and link to Old War Dogs >> Re: "Hmmm?"

The above hissed in response by: Bill Faith [TypeKey Profile Page] at July 11, 2006 9:05 PM

The following hissed in response by: hunter

Sorry to respond to this so late. I had to stop laughing at monkyboy before I could type.
mb, are you seriouisly pushing the idea that the Hague is going to get involved in this?
And do please get the memos from the Nixon era that were like this?
You are too good to be true, mb.
Dafydd, thanks for a great breakdown. The USSC, by a very narrow margin, is trying a coup against the United States.
We are right and obligated, until the USSC bans it, to point out how bad an idea they are promoting.

The above hissed in response by: hunter [TypeKey Profile Page] at July 12, 2006 3:14 AM

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