With 'All Necessary and Appropriate Force'
Official Washington has been struck by a paroxysm of leaking. It involves classified memos analyzing how the Geneva Convention, the 1994 Torture Convention and a federal law banning torture apply to captured Al Qaeda and Taliban fighters. Critics suggest that the Bush administration sought to undermine or evade these laws. Sen. Dianne Feinstein (D-Calif.) claimed this week that the analyses appeared "to be an effort to redefine torture and narrow prohibitions against it."
This is mistaken. As a matter of policy, our nation has established a standard of treatment for captured terrorists. In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated "humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles" of the Geneva Convention. Detainees receive shelter, food, clothing, healthcare and the right to worship.
This policy is more generous than required. The Geneva Convention does not apply to the war on terrorism. It applies only to conflicts between its signatory nations. Al Qaeda is not a nation; it has not signed the convention; it shows no desire to obey the rules. Its very purpose -- inflicting civilian casualties through surprise attack -- violates the core principle of laws of war to spare innocent civilians and limit fighting to armed forces. Although the convention applies to the Afghanistan conflict, the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war.
It is true that the definition of torture in the memos is narrow, but that follows the choice of Congress. When the Senate approved the international Torture Convention, it defined torture as an act "specifically intended to inflict severe physical or mental pain or suffering." It defined mental pain or suffering as "prolonged mental harm" caused by threats of physical harm or death to a detainee or a third person, the administration of mind-altering drugs or other procedures "calculated to disrupt profoundly the senses or the personality." Congress adopted that narrow definition in the 1994 law against torture committed abroad, but it refused to implement another prohibition in the convention -- against "cruel, inhuman or degrading treatment or punishment" -- because it was thought to be vague and undefined.
