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saburai

Published Letters: 48

Friday, December 5, 2008 02:15 PM

I am not at all a scholar on this issue...

...and I make no apology for having a "Wikipedia Level" understanding of military-legal questions. So here's the Wikipedia stuff, for what its worth (empaphsis mine):

On April 28, 2005 Defense Secretary Rumsfeld announced that the Army would be revising the manual. The revised manual would have spelled out more clearly which interrogation techniques were prohibited.

On December 14, 2005, the New York Times reported that the Army Field Manual had been rewritten by the Pentagon. Previously, the manual's interrogation techniques section could be read freely on the internet. But the new edition includes 10 classified pages in the interrogation technique section, leaving the public no indication about what the government considers not to be torture. [2]

On June 5, 2006 the Los Angeles Times reported that the Pentagon's revisions will remove the proscription against "humiliating and degrading treatment", and other proscriptions from article 3 of the third Geneva Convention.[3] [4] The LA Times reports that the State Department has argued against the revisions because of the effect it will have on the world's opinion of the United States.

As of July 5, 2006, there is an ongoing debate over whether the interrogation section should be classified. The New York Times has reported that the Pentagon is considering making the interrogation section public once again, but the Pentagon has made no formal announcement of its intentions.

On September 6, 2006, the U.S. Army announced the publication of Field Manual (FM) 2-22.3, "Human Intelligence Collector Operations." The Army's news release stated that Field Manual 2-22.3 replaces Field Manual 34-52 (published in 1992).

So, to sum up: Rumsfeld rewrote part of the AFM dealing with interrogation and added a classified portion that could make the AFM itself totally compatible with acts that I (and most people) would call torture. Also, the original AFM, composed by Eisenhower and re-released in 1992, has been replaced by a new one, as of 2006.

So I read parts of FM 2-22.3. Here is an excerpt from that (again, my emphases):

M-15. All captured or detained personnel shall be treated humanely at all times and in accordance with DOD Directive 3115.09, "DOD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning"; DOD Directive 2310.1E, “Department of Defense Detainee Program,” and no person in the custody or under the control of the DOD, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment as defined in US law, including the Detainee Treatment Act of 2005. All intelligence interrogations, debriefings, or tactical questioning to gain intelligence from captured or detained personnel shall be conducted in accordance with applicable law and policy. M-16. Any inhumane treatment—including abusive practices, torture, or cruel, inhuman, or degrading treatment or punishment as defined in US law, including the Detainee Treatment Act of 2005—is prohibited and all instances of such treatment will be reported immediately in accordance with paragraph 5-69 thru 5-72. Beyond being impermissible, these unlawful and unauthorized forms of treatment are unproductive because they may yield unreliable results, damage subsequent collection efforts, and result in extremely negative consequences at national and international levels.

Does 2-22.3 have a classified section? I don't know. I can't tell. There's nothing redacted in the PDF I found on the Army website, but they could have just left the offending appendix out. Also, when it says that no one in DOD custody should be abused, does that mean that the AFM offers no protection to people in CIA custody?

What I'm reallytrying to figure out here is:

How strong is the statement "I reject torture and will force ALL government forces to follow the Army Field Manual"? Is that an iron-clad rejection of torture, or just a bunch of weasel words letting you pass the buck to the torture-authorizing AFM, with its classified appendix? The current debate has gotten frighteningly semantic, and it seems like "support the AFM" is becoming synonymous with rejecting torture. But is that really true? Does anyone have a definitive answer on this?

I get frustrated with these nuanced discussions of what really should be a fairly non-nuanced issue. This is what we get for putting lawyers in charge, I guess. Any clarification would be appreciated.

Friday, December 5, 2008 02:19 PM

Er. Ahem

I think "empaphsis" is more commonly spelled "emphasis". Saburai regrets the error. Boy, ever read that word ten times in a row? It loses all meaning. Kind of like reading an official congressional statement.

Tuesday, December 9, 2008 11:54 AM

Legal question

The general described a navy policy, by which an accident investigation involves both a public and private version.

He said that in the private version of the investigation, witnesses can testify without any danger of self-incrimination. That seems like an awfully strange legal paradigm; certainly one I'm not familiar with.

There are cases, of course, where particular witnesses are offered immunity from the prosecution of a particular crime in exchange for their public testimony... but is the general suggesting that a pilot accused of bombing civilians, say, can be cleared of wrongdoing in a public investigation, while confessing to the homicides in secret and without fear of repercussion? How could that legally be structured? Who would hear this non-confession? Would the secret investigator also have to be sworn to secrecy?

I think this is particularly relevant if the general is suggesting a similar approach for his desired torture investigation. I wouldn't be very satisfied if the instigators of our torture policy revealed everything, in secret, and without fear of prosecution. That accomplishes neither accountability NOR transparency.

Wednesday, December 10, 2008 05:29 PM

I wrote a somewhat rambling letter...

...in response to this post. And then I deleted it. It just seemed hostile and unproductive; reading the news these days does that to me.

I'm not affiliated with any party, so maybe the allure of the Democratic Party eludes me. They really don't seem any closer to having ethical and consistent positions than the Republicans. I would feel dirty being associated with either.

I wasn't surprised in the least by this news. Maybe saddened a bit.

I guess I just need some sleep and a good meal.

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