Simply Mistaken?

Slate's blog on legal issues.
April 5 2008 6:06 PM

Simply Mistaken?

Marty says I am " simply mistaken " to argue that there is considerable space between the lines set by the Army Field Manual and the legal lines imposed by various international obligations of the United States. I don't think I'm mistaken—certainly not simply so.

In rewriting the Army Field Manual, the military rejected almost all of the new techniques that Donald Rumsfeld earlier approved for use at Guantanamo. Some of these, to be sure, involved pretty coercive stuff. Some of them, by contrast, were pretty anodyne: yelling at detainees, denying them hot rations, and the like. I find it hard to believe that this kind of thing even approaches the legal line of cruel, degrading, and inhuman treatment, let alone torture. Even some of the harsher techniques, like temperature manipulations and sleep adjustments —which can certainly be torturous at one end of the spectrum—can also be done in ways that would be merely unpleasant. There is, after all, surely no legal requirements in the Geneva Conventions or elsewhere that detention facilities set their air conditionings to the optimum temperature for a given detainee's comfort. Nor, in my judgment, is it cruel or inhuman to interrogate detainees in the middle of the night instead of the middle of the day.

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Don't get me wrong; I'm not advocating these techniques, and I fully concur with the military's judgment that military interrogators should keep well away from them. I'm merely arguing that their rejection by the military was in large measure a prudential, not a legal, judgment. And the CIA might have good reason to adopt interrogation methods that more closely approach the actual legal limits.

The CIA, after all, never detains POWs. Except in the situations of foul-ups, moreover, it only detains the true worst of the worst—very small numbers of the most dangerous people in the world. Its interrogation crew is small, nothing like the legions of young kids the military sends into combat zones all over the world to interview vast numbers of detainees, many of whom are entitled to treatment as POWs. So where the Army decided to keep clear of what the law might theoretically tolerate, the CIA might reasonably make a different judgment: that given its interrogators and its crop of detainees, it wants to make every tactic whose lawfulness it can defend available to its people. I don't think Congress should preclude that judgment.

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