Re: Bush ok w/torture of USA soldiers & cits
by
trapdoor
07/24/2007, 12:30 PM #
Do you want to talk law, or morality? They aren't always the same thing.
Torture we can certainly state as a moral wrong. Legally, however, Bush is on much better footing and the author of the article (and the originator of this post) are missing something. The Geneva Convention (the sheaf of treaties comprising the Law of Land Warfare as practiced by the U.S. government throughout most of the last century) does not apply to terrorists -- and it never has. This isn't some new interpretation created by the Bush administration.
The Geneva convention probably is "quaint" -- it protects the uniformed soldiers of governments who are signatories of the convention. It has never applied to "soldiers" who don't represent a government. It has never applied to spies and other covert operatives who don't wear uniforms, but do represent governments. When it comes to uniform-wearing members of governmental units, it applies only if the governments have also signed on to the treaty. My point is, using the GC as a starting point in the legal argument is extemely flawed. Terrorists almost by definition don't represent governments. They don't wear uniforms. They haven't signed the GC (and they don't practice its provisions when they are in possession of U.S. prisoners).
As for the current executive order, I think it's critics are correct when they say it is an extremely lawyerly compostion, replete with loopholes galore for various treatments that might be considered torture. I'm not certain this is wrong. Can you imagine the questioning session:
CIA "Are you a terrorist?"
Terrorist (excuse me, "freedom fighter') "No."
CIA "Pretty please, are you a terrorist?"
"Freedom fighter," "No."
"I really need to know if you're a terrorist, are you?"
"Freedom fighter," "No."
Obviously some sort of "carrot or stick" approach is needed, but we aren't allowed to use any "sticks," not even if they're just to make the person stand up for eight hours.
I'm not condoning torture, either, but this executive order makes an effort to define torture, and all the terms it uses or could use fall short because torture itself is a slippery term. It's easy to identify waterboarding as torture, or the rack, or the thumbscrew -- it's a lot heard to define what constitutes a violation of human dignity. Does nudity violate human dignity? The only answer is "sometimes yes, sometimes, no, depending on the individual and their culture."
So we're dealing with issues that only appear to be black and white, but offer a varitible set of fractal zooms of shades of gray when examined closely.