Friday, August 05, 2005

Bush, Torture and Lincoln's Legacy

By James Ross
Published in America Magazine, August 1, 2005

Being the only superpower means never having to say you're
sorry. In the year since the first photos of humiliation and torture at
Abu Ghraib prison were leaked, there has been a flurry of
Pentagon studies, jump-started criminal investigations and
disturbing new revelations in the media. Yet public attention has
not translated into sustained public outcry. The Bush
administration has been remarkably successful thus far in avoiding
paying a political price for policies that are destined to endanger
U.S. soldiers in future wars and harm America's long-term foreign
policy interests.

An important reason for this muted outrage has been the
administration's skill in disparaging the laws of armed conflict --
that hoary body of international law that does not ban war, but
seeks to minimize the suffering war invariably produces. The
administration has sought to portray this law, particularly the
Geneva Conventions of 1949, as harmful rather than helpful for
protecting America's security.

When the first detainees arrived at Guantanamo Bay in January
2002, Defense Secretary Donald Rumsfeld declared them all to be
unlawful combatants who "do not have any rights" under the
Geneva Conventions. The U.S., he said, would "for the most part,
treat them in a manner that is reasonably consistent with the
Geneva Conventions, to the extent they are appropriate." Later that
month, then White House counsel Alberto Gonzales wrote to
President Bush that the Geneva Convention provisions on
questioning enemy prisoners were "obsolete" and argued, among
other things, that rejecting the applicability of the Geneva
Convention "[s]ubstantially reduces the threat of domestic criminal
prosecution" of U.S. officials for war crimes.

Over the objections of then Secretary of State Colin Powell and
military leaders, President Bush essentially adopted this line. On
February 7, 2002, he announced that the Geneva Conventions did
not apply in military operations against Al Qaeda. Rumsfeld told
journalists that day: "The reality is the set of facts that exist today
with the Al Qaeda and the Taliban were not necessarily the set of
facts that were considered when the Geneva Convention was
fashioned."

The administration's rejection of the Geneva Conventions was
unlawful, unnecessary and ultimately led to the abuses of prisoners
in Afghanistan, Iraq and at Guantanamo Bay. Under the Geneva
Conventions, captured members of armed groups such as Al Qaeda
are not entitled to prisoner-of-war status. They are nonetheless
entitled to the basic protections afforded all persons picked up in a
battle zone, including protection from torture and other ill
treatment, a fair trial should they be charged with a crime, and, in
the case of civilian detainees, the periodic review of the security
rationale for their detention.

The administration's policy opened the door for the bizarre legal
theories put forward in the infamous "torture memos" drafted in
2002 and 2003. Besides nearly defining away the concept of
torture, these memos claim that no law, international or domestic,
bans the president as commander-in-chief from ordering torture
(by this reasoning, Saddam Hussein could lawfully order torture
too). Although the White House frequently repeated the mantra of
"humane treatment" of detainees, the rejection of the Geneva
Conventions and the torture memos' encouragement of unlawful
practices meant that the pragmatic and legally grounded U.S.
military regulations on interrogations could safely be ignored.

The Bush administration's attitude towards the laws of war is a
radical departure from longstanding U.S. military practice. During
the Korean War, the United States treated enemy soldiers in
accordance with the Geneva Conventions even though none of the
protagonists had yet to ratify the treaties. In Vietnam, captured
Viet Cong were held as prisoners-of-war even though the letter of
the law did not require it. It's an old and noble tradition: David
Hackett Fischer in his recent book, Washington's Crossing,
describes how General George Washington made sure that
captured British and Hessian solders were treated humanely even
though the British often executed captured Continentals.
Washington wasn't just being generous: he understood that such
treatment would over time best serve the interests of American
soldiers.

Surprisingly little attention has been paid to President Bush's --
and everyone else's -- most admired president, Abraham Lincoln,
on the laws of war. Despite the grave threat the Civil War posed to
the nation, Lincoln recognized the value of broadly recognized
rules of war that promote restraint and humanistic principles.

By late 1862 the bloody day at Antietam and the issuance of the
Emancipation Proclamation had totally changed the nature of the
war. In Bruce Catton's words, "[t]he war now was a war to
preserve the Union and to end slavery?. It could not stop until one
side or the other was made incapable of fighting any longer; hence,
by the standards of that day, it was going to be an all-out war ?
hard, ruthless, vicious?." Lincoln recognized that such a conflict
required greater attention to war's customary rules, not less.

First was the problem of the legal status of captured Confederate
soldiers. Lincoln did not want to recognize the rebellion of the
southern states as legitimate, nor was it desirable or feasible to
label all Johnny Rebs as traitors subject to execution. He needed a
way to treat captured Confederate soldiers as prisoners of war
without suggesting that the Confederate States of America was a
lawful state.

Second, the hyper-expansion of the U.S. military from a peacetime
force of 13,000 professional soldiers to multiple armies of several
hundred thousand volunteers and conscripts placed huge burdens
on military discipline. In northern Virginia and other areas under
federal occupation, vandalism by Union forces was rampant.
Whereas the old army could slowly inculcate new recruits with the
traditional laws of war, the Civil War army, whose officers were
often as green as its foot soldiers, required a clearly written set of
rules of practical value.

Lincoln turned for advice to an ?migr? legal scholar, Francis
Lieber, at Columbia College (now University) in New York City.
Born in Berlin, Lieber as a teenager fought and was severely
wounded during the Waterloo campaign. Prussian political
repression brought him to the United States in 1827. He taught for
many years in South Carolina, keeping quiet his strong abolitionist
views until he transferred to Columbia's faculty in 1857.

More than his European upbringing, Lieber's views on the laws of
war reflected his life in America: two of his sons fought for the
Union, one losing an arm at Fort Donelson. And his eldest son,
raised in the South, joined the Confederate ranks and was mortally
wounded at the Battle of Williamsburg in May 1862. In a letter to
Senator Charles Sumner of Massachusetts, Lieber wrote: "I knew
war as [a] soldier, as a wounded man in the hospital, as an
observing citizen, but I had yet to learn it in the phase of a father
searching for his wounded son, walking through the hospitals,
peering in the ambulances."

Contrary to prevailing attitudes in the North, Lieber urged that
Union forces on humanitarian grounds provide the privileges of
belligerency to Confederate forces. This allowed Lincoln to dodge
the thorny question of appearing to recognize the Confederacy
while providing rebel soldiers the protections then normally due
prisoners-of-war. (Bush appeared to be adopting this approach
when he called for the humane treatment of Guantanamo detainees,
but the practice never measured up to his words.)

This humanistic strain runs through Lieber's "Instructions for the
Government of Armies of the United States in the Field," which
President Lincoln approved on April 24, 1863 as General Orders
No. 100. The Lieber code, as it is now known, was the first
recognized codification of the laws of war. As Lieber noted at the
time, "nothing of the kind exists in any language. I had no guide,
no ground-work, no text-book." Its 157 rules made a lasting place
for Lieber -- and the United States -- in the development of the
laws of war.

Lieber was no softie when it came to warfare. While believing that
the final aim of war was to reestablish the state of peace, he argued
that the best way to achieve this was through short, decisive wars.
As article 29 of Lieber's code states, "the more vigorously wars are
pursued, the better it is for humanity. Sharp wars are brief." This
thinking underlines U.S. war-fighting doctrine today.

The Lieber code has been criticized for its reliance on the doctrine
of "military necessity," which permits often-egregious practices so
long as a commander has a military justification, an all too handy
escape clause. But Lieber's conception of military necessity
actually placed limits on an army's actions where previously none
existed: thus pre-Lieber code armies could loot and destroy civilian
property at will, even when there was no military need for doing
so. Other Lieber code provisions considered barbaric today ? such
as the starvation of besieged towns ? were part and parcel of
nineteenth century warfare and have since been prohibited.

Such caveats aside, the Lieber code consolidated important
humanizing elements of warfare. Of particular note are Lieber's,
and ultimately Lincoln's, views on the treatment of prisoners.
Article 16 of the code boldly states: "Military necessity does not
admit of cruelty--that is, the infliction of suffering for the sake of
suffering or for revenge, nor of maiming or wounding except in
fight, nor of torture to extort confessions." All forms of cruelty
against prisoners are prohibited. Even the code's broad acceptance
of military necessity does not provide a justification for torture.

General Orders No. 100 was distributed to the Union armies in the
field and the standards set by the code seem to have been generally
observed by both sides. At the close of the war, the code's precepts
figured in the debate over Sherman's destructive "March to the
Sea," and the trial and conviction of Captain Henry Wirtz,
commandant of the notorious Confederate prison camp at
Andersonville in Georgia.

The major powers of Europe quickly recognized the value of
codified laws of war and Lieber's code became the model for
Prussia and other armies on the continent. Ultimately this
American vision of warfare and the treatment of prisoners became
the basis for the major international treaties, namely the Hague
Regulations at the turn of the nineteenth century and the Geneva
Conventions. Geneva's strict prohibitions on torture and other
cruel treatment can be traced through Lieber's own
uncompromising language.

The Bush administration, through its open disregard for the laws of
war in its treatment of detainees, has undermined an important
American tradition. Even after the publication of the Abu Ghraib
photos, Secretary Rumsfeld continued to pooh-pooh the Geneva
Conventions. He told NBC's "Today" on May 5, 2004 that the
conventions "did not apply precisely" but were "basic rules" for
handling prisoners. Visiting Abu Ghraib a week later, Rumsfeld
remarked: "Geneva doesn't say what you do when you get up in
the morning." Actually, the U.S. armed forces have devoted
considerable energy over the years to making the Geneva
Conventions fully operational by military personnel. Various U.S.
military field manuals and operational handbooks provide the
means for implementing Geneva Convention provisions, even
where those provisions are unclear.

While the media often still refer to the "Abu Ghraib scandal," we
now know serious crimes were committed in several dozen
detention centers in Iraq, Afghanistan and at Guantanamo Bay. At
last Pentagon count, no less than twenty-seven detainee deaths
were criminal homicides. The CIA has admitted to using "water
boarding" (near drowning), unmistakably a form of torture. And
documents newly released under the Freedom of Information Act
have confirmed some of the more outrageous accounts of detainee
abuse. In the meantime, one suspects those Abu Ghraib photos are
being used by Al Qaeda and others as recruiting posters.

The White House has treated these crimes in the manner of a tin-
pot dictatorship. It has engaged in pseudo hand wringing, dog-and-
pony investigations and lackluster criminal prosecutions that have
concentrated on the "bad apples" at the bottom of the barrel and
ignored those at the top. The connection between the official
policies and the unofficial practices has yet to be fully investigated.
Administration officials most responsible have gotten promotions
and praise rather than the boot.

One top official, now out of office, fully understood where the
administration was leading us. The day after Alberto Gonzales sent
his January 2002 memo to the president, Colin Powell submitted a
stinging rebuke. He wrote that declaring the Geneva Conventions
inapplicable to the Afghan conflict would "reverse over a century
of U.S. policy and practice in supporting the Geneva Conventions
and undermine the protections of the law of war for our troops,
both in this specific conflict and in general." And he warned that it
would have "a high cost in terms of negative international reaction,
with immediate adverse consequences for our conduct of foreign
policy."

Other dissenters are beginning to come out of the woodwork.
Shortly after stepping down from his post as State Department
legal advisor, William H. Taft IV told an audience at American
University in March this year: "It has been a continuing source of
amazement and, I may add, considerable disappointment to me
that? lawyers at the Department of Justice thought it was
important to decide at that time that the Conventions did not apply
to al Qaeda as a matter of law.?. This unsought conclusion
unhinged those responsible for the treatment of the detainees in
Guantanamo from the legal guidelines for interrogation of
detainees reflected in the Conventions and embodied in the Army
Field Manual for decades."

Making the Geneva Conventions optional and failing to properly
punish those responsible for war crimes will place captured
American soldiers and civilians in future wars at greater risk.
States that for nearly 150 years have looked to the United States as
a source of inspiration for the treatment of prisoners in wartime
have lost an important ally. And the difficult task of promoting
decent conduct in the world's myriad vicious little wars ? wars that
often affect U.S. interests ? has now become even harder.

George W. Bush has a long way to go before he can claim
Abraham Lincoln's legacy to a humane articulation of the laws of
war. It is a legacy that has long served the interests of the United
States and for which Americans can genuinely be proud. It is a
legacy that with each feckless Pentagon investigation and half-
hearted war crimes prosecution becomes forever imperiled.

To view this document on the Human Rights Watch web site,
please visit: http://hrw.org/english/docs/2005/08/05/usdom11610.htm

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