And so we discover that, as Marty Lederman feared, the real policy of Bush-Cheney-Rumsfeld is not to acquiesce to the Geneva Conventions (they got their one-day headline to confuse critics) – but to legislatively revoke them. This can be done. It would remove the United States from the company of decent nations in warfare, it would rewrite a formerly binding treaty unilaterally, and it would specifically authorize, among other techniques, the kind of hypothermia testified to below. We may well have to get into specifics about what can and cannot be legally done. Bush and Cheney want to retain the following, for example:
Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
There is no legal question that this would mean withdrawal from Geneva. And that, make no mistake, is what the new authoritarians want.
This National Review editorial, to its credit, openly supports that move. They want to revoke Article 3, and argue – preposterously – that the U.S. has abided by it all along. Money quote:
Congress should make it clear that its new military-commission statute overrides Common Article 3. This would serve to repudiate the Court’s attempt to effectively sign a treaty with al Qaeda that no one in the U.S. would have ever favored and would also delineate precisely what the standards and requirements for handling unlawful enemy combatants are. If Common Article 3 had been meant to apply to terrorists in the first place, there never would have been a need for the 1977 Protocol I Additional, which the U.S. has never accepted ‚Äî exactly because it afford terrorists Geneva rights.
For an analysis of this fallacious notion that Article 3 would "effectively sign a treaty with al Qaeda," see Marty Lederman’s argument here. But NRO deserves some credit for their candor. They want America to become a country widely known through the world as a country that does not abide by the most basic Geneva protections for military prisoners. And they think this will help us win this long, tough war. They could not be more morally and strategically misguided.
(Photo of Gitmo: Mark Wilson/Getty.)
The Dish 