What Congress Has Done and Not Done to Limit Inhumane Treatment

Julian’s post below on the bill passed by the Senate today misses a few key points. First, the standards set out in the bill will not apply to all detainees being held by the US, but only to those held by military personnel. This leaves the still troubling question of what the administration’s current policy is toward non-military interrogations. (But it does get address the enormous public diplomacy problem presented by Abu Ghraib.) Second, the standard barring “cruel, inhuman or degrading treatment” (language that is replicated in the Torture Convention) was already contained in the obligations under the Geneva Conventions. Setting aside the technical legal argument, as a matter of policy, it wasn’t until this administration that the US military was confronted with the notion that it might not be held to the GC standard. Indeed, it was the military that begged the Senate for additional guidance, even though its own internal standards (the Army Field Manual, for example) long required the higher standard of treatment.

Finally, by stating that “there is no serious legal objection to Congress getting involved in this process,” seems to imply that there are non-legal objections to Congress getting involved. What are those? Perhaps pesky checks on unbridled executive power raise the “inconvenience” objection? Or is it that there is a defense for allowing military personnel to treat detainees and POWs in a manner that is not only contrary to our obligations under international law, but also offends more deeply held beliefs that we are better than that? Harold Koh might call our nation’s insistence that we are better than that “good American exceptionalism.” Senator John McCain might just call it morality. But it is inextricably linked with our strong tradition of the rule of law. Senator McCain’s full statement today:

Mr. President, war is an awful business. I know that. I don’t think I’m naive about how severe are the wages of war, and how terrible are the things that must be done to wage it successfully. It is a grim, dark business, and no matter how noble the cause for which it is fought, no matter how valiant the service, many veterans spend much of their subsequent lives trying to forget not only what was done to them and their comrades, but some of what had to be done by their hand to prevail. I don’t mourn the loss of any terrorist’s life nor do I care if in the course of serving their ignoble cause they suffer great harm. They have pledged their lives to the intentional destruction of innocent lives, and they have earned their terrible punishment in this life and the next.

What I do regret, what I do mourn, and what I do care very much about is what we lose, what we — the American serviceman and woman and the great nation they defend at the risk of their lives — what we lose when by official policy or by official negligence — we allow, confuse or encourage our soldiers to forget that best sense of ourselves, our greatest strength: that we are different and better than our enemies; that we fight for an idea — not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion — but for an idea that all men are created equal and endowed by their Creator with inalienable rights.

I have been asked before where did the brave men I was privileged to serve with in Vietnam draw the strength to resist to the best of their ability the cruelties inflicted on them by our enemies. Well, we drew strength from our faith in each other, from our faith in God, and from our faith in our country. Our enemies didn’t adhere to the Geneva Convention. Many of my comrades were subjected to very cruel, very inhumane and degrading treatment, a few of them even unto death. But everyone of us knew, every single one of us knew and took great strength from the belief that we were different from our enemies, that we were better than them, that we, if the roles were reversed, would not disgrace ourselves by committing or countenancing such mistreatment of them. That faith was indispensable not only to our survival, but to our attempts to return home with honor. Many of the men I served with would have preferred death to such dishonor.

The enemies we fight today hold such liberal notions in contempt, as they hold the international conventions that enshrine them such as the Geneva Conventions and the treaty on torture in contempt. I know that. But we’re better than them, and we are the stronger for our faith. And we will prevail. I submit to my colleagues that it is indispensable to our success in this war that our servicemen and women know that in the discharge of their dangerous responsibilities to their country they are never expected to forget that they are Americans, the valiant defenders of a sacred idea of how nations should govern their own affairs and their relations with others — even our enemies.

Those who return to us and those who give their lives for us are entitled to that honor. And those of us who have given them this onerous duty are obliged by our history, and by the sacrifice — the many terrible sacrifices — that have been made in our defense, we are obliged to make clear to them that they need not risk their or their country’s honor to prevail; that they are always, always — through the violence, chaos and heartache of war, through deprivation and cruelty and loss — they are always, always Americans, and different, better, and stronger than those who would destroy us. God bless them as he has blessed us with their service.

Update 10/7/05:
Julian rightly corrects me on the point about intelligence agencies. The amendment (full text here via Jurist) includes in Section 2(a) language that refers to any individuals in “custody of under the physical control of the United States Government.” This would not, of course, prevent rendition practices, although could plausibly include contractors acting on behalf of the USG (regardless of the nationality of the contractor).