Why is the vice president deciding how the U.S. treats foreign detainees?
Today's revelations in the New York Times about the Bush administration's internal debate over how to treat foreign detainees highlight the unprecedented role that Vice President Dick Cheney and his staff are playing in setting national security policy. In the Constitution, the vice president is the nation's understudy. He is not supposed to be in the chain of command. Cheney knows this better than most: In 1989, when he was George H.W. Bush's secretary of defense, Cheney slapped down Vice President Dan Quayle for calling a meeting of the National Security Council about a coup attempt in the Philippines while the president was out of the country.
Yet now the Office of the Vice President is dictating the rules by which the U.S. military interrogates and detains terrorist suspects. This is being done subtly. All the Office of the Vice President has to do is informally convey its opposition to complying with international law in this area, and any such effort is thwarted.
This is what happened to an attempt by some officials in the Department of Defense, along with the lawyers of all the armed services, to write a new directive on the treatment of detainees. Since the Bush administration began sending foreigners captured abroad to Guantanamo Bay in winter 2001, its refusal to afford them all the protections guaranteed by the Geneva Conventions has been, to say the least, internationally contentious. Now the military and some Pentagon officials are increasingly aware that this refusal is making American troops vulnerable abroad by potentially provoking other countries to respond in kind. The current policy has also created confusion in the armed services among interrogators who were originally trained to follow Geneva and now don't know which standard to apply. The goal of the drafters of the new directive was to set clear standards that are consistent with international law and with the military's rules since 1949.
The draft directive drew upon the language from Common Article Three of the Geneva Conventions of 1949, implying that the United States recognized the role of international law in governing how it treated detainees. Not everyone in the Pentagon was happy with this. Stephen Cambone, the undersecretary of defense for intelligence policy, and William J. Haynes, DOD's general counsel, apparently let the vice president's office know what was happening. In September, David S. Addington, who was then Cheney's general counsel, and former Cheney aide I. Lewis Libby did their best to veto the initiative.
Cheney and Addington (and Libby) believe that there should be no limit on the president's right to authorize interrogations of terrorist suspects. The Office of the Vice President is contemptuous of the British and our other European allies, who have been reluctant to turn over suspects to the United States because of what they see as Washington's lawless approach.
What does the Oval Office think about adopting a Geneva-friendly detainee policy? So far, there is no evidence that President George W. Bush has weighed in directly since February 2002 on applying Geneva's protections to the detainees. At that point, he said that al-Qaida and Taliban fighters would not have prisoner-of-war status but would nonetheless be treated "humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles" of the Geneva Conventions. The ambiguity of Bush's 2002 statement—was he saying that the Geneva Conventions did not trump military necessity?—has encouraged advocates of a Geneva-based policy to argue that he intended to set a floor rather than a ceiling for the treatment of detainees.
And what about Secretary of Defense Rumsfeld, who is in the military chain of command? The reporting is still vague thus far on his opinion about the standards for detainees. Matthew Waxman, Rumsfeld's deputy assistant secretary of defense, was a champion of incorporating Common Article Three into the new interrogation directive. But Rumsfeld himself reportedly said nothing, even after the vice president's office shot down the draft directive. Rumsfeld and Cheney go way back; Cheney worked for Rumsfeld in the Nixon administration. Whatever else Rumsfeld's silence means, by ceding this area to Cheney, the defense secretary signals to the armed services that he doesn't much care that their lawyers want to bring U.S. policy in line with the Geneva Conventions.
The military cares about Geneva's protections because of the correlation that American intelligence officers increasingly see between Muslim anger at the United States for human rights abuses in Guantanamo and elsewhere and the virulence of the insurgencies in Iraq and Afghanistan. In its secret brief in a case involving the ACLU's request for the disclosure of additional photographs of the abuses that took place at Abu Ghraib, the government acknowledged as much.
Ordinarily presidents assign their vice presidents some projects, usually with consultation, of course. Yet once Cheney focuses on a policy, he dominates it.
So long as his views prevail in how the Bush administration treats foreign detainees, the military's push to safeguard American troops by respecting Geneva will be stymied.
Tim Naftali, currently a national security fellow at the New America Foundation and a former director of the Richard Nixon Presidential Library and Museum, is writing a book on the Kennedy presidency for publication in 2013.
Photograph of Dick Cheney by Todd Bennett/Getty Images.