Phillipe Sands is a member of the Queens’ Council and a professor of law at University College London. He is also the author of the May 2008 novel, “Torture Team: Rumsfeld’s Memo and the Betrayal of American Values.” His treatment of interviewee Douglas Feith in that book earns him honors from Powerline’s Paul Mirengoff as the recipient of the dishonest journalist of the year award.
As this was an election year, competition was especially sharp:
Sands persistently claims that Douglas Feith, former Under Secretary of Defense for Policy, opposed giving any detainees at Guantanamo the protections of Article 3 of the Geneva Conventions. He further claims that Feith wanted the detainees to have no protection at all under Geneva and worked to ensure that none of the detainees could rely on Geneva. These charges are dishonest. Sands purports to base them on an interview he conducted with Feith. But the transcript of that interview, when finally released, failed to support Sands’ charges and, in fact, refuted them. As to Geneva Article 3, it was never mentioned in the interview. As to Geneva generally, Feith told Sands several times, as plainly as anyone could have, that he believed Geneva does apply to the conflict with the Taliban but that, under Geneva, Taliban members are not entitled to prisoner-of-war status…
Sands distorted and misrepresented what Feith said. Yet Sands continues to insist that the book is accurate. His shameless insistence on the accuracy of his statements about Feith, coupled with his telling breach of his promise to “run any quotations” by Feith before using them in his book, makes Sands the dishonest journalist of the year.
Hey, whatever sells.
To be honest, I haven’t read the book – the title gave the ending away – so I’ve no idea whether or not the rest of Sand’s charges are in any degree substantiated. But what is it the Jesuits say? “Falsum in uno, falsum in omnibus”?
An author can bend the truth and twist the facts as he likes, but if he manufactures them – and is caught out – he is at the very least susceptible to charges that he did so to conform them to his narrative, rather than the other way around.
Oh, that and the conferral of dubious distinctions.
‘Falsum’ is a prison is it not?
According to Johnny Cash anyway (down in Folsom Prison). Sing along (in a deep, gravelly voice).
Journalism, like nostalgia, ain’t what it used to be.
To be honest, I haven’t read the book – the title gave the ending away – so I’ve no idea whether or not the rest of Sand’s charges are in any degree substantiated.
I’ve read the book, Lex. In fact, I just finished reading it about a week ago.
Doug Feith’s position on the Geneva Convention’s applicability to the detainees at Guantanamo, as Sands describes it in the book, is as follows: Feith’s position was that the Taliban were protected under the Geneva Conventions, but if captured and detained by the U.S., they could not call on the G.C.’s protection. In other words, they were protected in law, but in actual practice they could not claim that protection. That’s what he says in the book (Sands, that is), and it’s also exactly what Feith says in the transcript Paul Mirengoff links to.
Another point Mirengoff makes is that Feith’s position on the Geneva Conventions was that the G.C.’s protections were rooted in an incentive system, whereby higher levels of protection are granted to participants in war who follow the rules of war as a reward for following those rules. Feith maintains that the differing levels of protection were and are specifically intended to function as an incentive system.
That’s what Feith believes, but there is nothing in the Conventions themselves to support his claim that that is the intended purpose of the differing levels of protection. Feith just made that up. I mean, I have no doubt he believes it, but it’s his idea of what the Conventions intend — it’s not a notion endorsed by the Conventions themselves.
One of the principal and most laudatory aims of the GC is to protect civilians by enforcing a visual distinction between lawful combatants and the general population – a distinction civilization’s adversaries, here and there, purposefully blur. Feith said that captured Taliban were protected by the GC as a matter of law – the conventions govern all aspects of lawful warfare, not just POW status – but that they could not claim those protections under the conventions afforded to prisoners of war, that they hadn’t earned it.
We were facing something utterly beyond what the GC framers had in mind when they sought to protect civilian populations from the depredations of opposing military forces – armed criminals intent on terrorizing their own populations into paralysis the better to impose a Medieval tyranny that, among other things, relegates women to chattel status, denies them education and essential liberties and solves the “problem” of gays by murdering them.
No one that I’m aware of argues that al Qaeda deserves POW protections; there was considerable considerable debate within the administration whether or not the Taliban ought to be protected as well, since Afghanistan – although a signatory to the GC – could be considered a “failed state”. Feith made the counter-argument, citing the moral weight the conventions afford as well as considerations of reciprocity for US soldiers captured in future conflicts – our people are very well aware that they’ll receive no such considerations should the Taliban capture them, Guantanamo or otherwise.
In his prepared statement to the Senate Committee, Feith wrote:
If the purpose of affording higher privileges to those captured in lawful combat than to pirates, brigands and, yes – terrorists – was not to incentivize the rules of armed conflict in a way that protects civilian populations, then why would the drafters at Geneva have made those distinctions? If terrorists are to be granted POW status, does that not in turn signal to other countries that terrorism is a sanctioned form of armed combat?
At one time, at least, the editorial board of the New York Times didn’t think so and congratulated Ronald Reagan(!) for having insisted upon that distinction.
According to Mirengoff, Sands omitted that distinction in his book (and in testimony before the Senate) although he had specifically recognized it in his discussion with Feith, while also reneging on a promise he’d made to let Feith preview the quotations in his draft – a sensible precondition, given the toxic political environment. That smacks of politically-motivated ill faith to me, and prejudices my view on whatever broader purpose Sands intended.
Of course, it did help Sands sell his book and stiffen the resolve of those convinced that the real enemies to be fought by whatever means necessary – including manufactured facts – are those government servants here at home trying their best to defend and extend liberty under cruelly complex circumstances.
It’s much simpler that way, and safer – you scarcely have to get out of bed.
As we look at this, it makes a great big difference on the timing of your entrance into Military Service. This is especially true in your thinking on this subject. We need to answer some serious questions. Where did the Geneva Conventions actually start? They are outgrowth of the Nuremberg Trials, both the precedents and the Nuremberg Code (prohibits medical experimentation without informed consent.) Are all of those 4 issues required from the Geneva Conventions? Answer is no, at Nuremberg, they tried NON-MILITARY judges, doctors, city officials and even merchants. Judges or doctors could be construed to be in “uniform”, if they were in their robe or lab coat, no weapons.
The weapons issue is actually moot, even then, they just used different weapons.
The last two are intertwined, chain of command and laws of war. Who are the members of the chain of command? Are you in it? If you are the lowest grunt on the battlefield, you are in the chain of command. You’re in command of your own behavior, but are also responsible for it. Where is the other end of the line, the top? The US Constitution says, the President of the United States is the Commander in Chief and Military Staff, civilian and uniformed. There is no statute of limitations on these issues, because they are actually under international law.
If you were enlisted at the same time as me, you were challenged with a question. You are given a direct order, what do you do? Well, we were always taught to silently challenge the order with a question? “Is this a lawful military order?” The idea that it came from a superior officer had no bearing, challenge it!
Lex, now, it is time to ask an open question, “In today’s world, how do we know that it’s a lawful military order?”
Grumpy
Grumpy, per Wikipedia, Geneva precedes Nuremberg by many years:
In today’s world, just like yours, soldiers, sailors airmen and Marines are taught what is and is not a legal order.
Lex, Respectfully, THANK YOU, for the corrections. The important thing is NOT my opinion, but it is important that the truth comes out.
V/R Grumpy
Feith said that captured Taliban were protected by the GC as a matter of law – the conventions govern all aspects of lawful warfare, not just POW status – but that they could not claim those protections under the conventions afforded to prisoners of war, that they hadn’t earned it.
Yes, but they *could* claim it under Common Article 3, which covers anyone who does not fit into one of the other categories, and which prohibits torture and any other cruel, inhuman, or degrading treatment. Common Article 3 also requires parties to the conflict to “endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.”
The Taliban, as well as Al Qaeda, would have been covered under Common Article 3.
If the purpose of affording higher privileges to those captured in lawful combat than to pirates, brigands and, yes – terrorists – was not to incentivize the rules of armed conflict in a way that protects civilian populations, then why would the drafters at Geneva have made those distinctions?
The purpose behind the Geneva Conventions was to try to address, and ameliorate, the cruelties of war by establishing certain minimum standards of treatment for *all* people caught up in war — civilians, of course, but also direct participants. Obviously, civilians and others who do not take part in hostilities at all should be protected — everyone accepts that, even though in practice civilians are often targeted, and suffer terribly even when not explicitly targeted. We didn’t need the Geneva Conventions to tell us that civilians should be protected from the horrors of war.
So yes, of course, the G.C.’s protections were intended to protect civilians, but the G.C. was also an acknowledgment that *all* parties to war deserve and should have some minimum level of protection *when they are captured by the other side.* This is a human right, not something that is earned by good behavior. Once a party to the conflict has either laid down their arms or been disarmed and taken into custody, even if they don’t fit the specific requirements for POW status, they *still* have to be afforded the basic protections enumerated in Common Article 3. There is no category of person who falls outside the G.C.’s protection. That’s different from the protections afforded to POWs. They have additional protections. But Common Article 3 still prohibits any kind of cruel or degrading treatment, as well as other requirements for treatment of those who fall under its protection.
Well, Kathy, the simple way out of the dilemma as far as the troops in the field are concerned is simply to take no prisoners. Is that an outcome you would prefer? No? I thought not. “What we have here” is a failure (or the refusal for the most blatant of political reasons by certain of the attendees) by those promulgating the conventions to anticipate that those doing the majority of the fighting would be clothed in civilian garb and use the non-combatant civilian population and hitherto sacrosanct civilian installations such as schools, hospitals and places of worship as fighting strong-points and ammunition caches.
If one scans the wording of Convention IV., Art.4, one quickly reaches the only conclusion possible: That the authors were indeed disciples of the Red Queen who at the very least believed one impossible thing before breakfast, i.e.,
that treating surrendering combatants in civilian garb with kid gloves would somehow lead to the protection of the civilian population at large.
Rather, such a requirement without penalty for putting the entire population at risk of wide-spread, ham-fisted dragnets and interrogation techniques in attempts to ferret out the terrorists from the rest of the civilian population; and the considering of civilian institutions as all suspect hiding places for the enemy, and therefore fair game for attack–all, all of this has the practical effect of creating conditions that run directly contrary to the spirit of the original reasons behind the creation of the conventions themselves–which was to ameliorate the more savage aspects of war.
It has been said of the American Constitution that it was not intended as a suicide pact. If one takes that to be literally true–as did Lincoln when he suspended Habeas Corpus–then one could argue that, considering the reality of “un-civil” warfare driven by the marriage of modern technology and religious zealotry, the Conventions are to be considered null and void–to be suspended until such time as international agreement can reformulate agreements capable of coping with these new conditions.
Therefore, like Lincoln, I, for one firmly believe that any President of the United States, in response to the threat posed by those who perpetrated 9-11, would be entirely within his rights to declare the Conventions null and void.
As for reciprocity? I hardly think American servicemen can be tortured and mulitiated worse than they already are–so from my point of view that question is moot.
Since Common Article 3 was never mentioned in the Sands-Feith interview – the discussion centered around POW status (Common Article 4, and the source of Feith’s four tests) – and she declines to rebut Mirengoff’s characterizations elsewhere I believe Kathy has effectually conceded the point by changing the topic.
CA 3 states that it applies to “armed conflict not of an international character” – clearly meant to discuss entirely internal conflicts such as rebellions, revolts and civil wars, and as such a dubious characterization for the fighting in Afghanistan, what with coalition troops from NATO and elsewhere everywhere on the ground – and applies “minimal protections which must be adhered to by all individuals” such as that they:
In the interview, Feith insists that the standard for GTMO detainees was “humane” treatment, and because that was a term with different connotations to different people that it needed “fleshing out”, something that has been done in the intervening period by applying the Army Field Manual standards on interrogation. Before that was done a grand total three (3) al Qaeda detainees were subjected to waterboarding by agents of the US government, as were hundreds (if not thousands) of US naval aviators in SERE training over the years.
Because, in the moments after our country was barbarically attacked with thousands of innocents slaughtered, administration lawyers did not instantly arrive upon the final formula, they are branded “torturers”, “war criminals” and the entire enterprise – which again, freed 60 million minds – is labeled “unlawful.”
This is to raise the retrospective standard so high as to make it impossible to meet, which I suspect was the point: The criminalization of policy differences, and the privilege of feeling morally superior to those actually in the arena, trying to sort things out. Even though following that point to its logical conclusion would result in a return to the status quo ante in Afghanistan, with all the attendant barbarism attaching thereto.
And it sells those books.
Seriously, were there only ever 3 waterboardings at Gitmo??
Conceding that if it constituted torture, one would be as wrong as 300 or 3000, still, it seems like an awful huge fuss was made if only 3 of them ever occurred before they were put a stop to. One would have thought that there must have been hundreds of them, that they were conducted weekly if not daily…
Ahh, Michelle … You’ve just accented the basic truth about the mainstream media. They have long ago abandoned any effort to present the facts, and opted instead for their Higher Duty of explaining to us USA cretins how things really are. Actually, I hope I’m not telling secrets out of school, but our own military SERE training program includes water-boarding, as a method of showing those military who are most at risk of capture how to resist water-boarding. Uncle Jimbo over at Blackfive says cheerfully that he lasted about three seconds. [I'll bet it was longer than that, but he was making a point at the time.]
At any rate, far more of our own military have been water-boarded in the service of our country than any of the prisoners in Guantanamo. They just don’t whine about it.
Just one more reason not to trust the mainstream media in this country.
Marianne
While conceding there shades of grey in matters so weighty I still come back to the simplistic formulation of the problem: There are forces aligned with and committed to evil that will commit all manner of barbarity to innocents to further their aims and there are forces of good committed to defending innocents and go to incredible lengths to prevent innocents from being harmed in doing so.
To the extent the elites and media attempt to blur the lines by magnifying the imperfection of the latter and to excuse the intent and actions of the former provides in a very real sense aid in comfort to the barbarian’s methods.
I believe the barbarians are our enemy. Connect those dots.
Even if Feith is technically right on this issue-he was still an overall failure in his position within the Department of Defense . And as such is deserving of whatever scorn can be laid upon him-regardless of the source.
The list of his mistakes is long-and while GTMO is probably not at the top of them, he nonetheless served men who urged the President of the United States to puruse a flawed and ultimately counterproductive course of action for the country. And to aggravate that mistake-he failed to act as an advocate for the proper resourcing of the armed forces in pursuit of that effort. So yea, let him have to defend himself on this and other accusations. Or better yet bring his bosses forth and let them bear the responsibility for their own flawed decisions.
Others argue that clear standards will limit the President’s ability to wage the War on Terror. Since clear standards only limit interrogation techniques, it is reasonable for me to assume that supporters of this argument desire to use coercion to acquire information from detainees. This is morally inconsistent with the Constitution and justice in war. It is unacceptable.-Cpt Ian Fishbeck in a letter to John McCain.
By that standard, if a man is thought guilty of speeding it is also permissible to label him a murderer. Does the truth no longer have a currency? Is it really no longer a defense against calumny?
If so, I’m glad I don’t have to live in that world, or make weighty and complex decisions on situations never before faced that might be scrutinized in the light of politically motivated, 20/20 hindsight.
With apologies to the esteemed O-3, commenting on the always level-headed Andrew Sullivan’s site, clear interrogation standards also serve as an interrogation resistance manual.
…and she declines to rebut Mirengoff’s characterizations elsewhere I believe Kathy has effectually conceded the point by changing the topic.
Conceded what point, Lex? That Doug Feith took the position that Middle Eastern detainees could not call on the G.C. for protection because they were not POWs? Or that Feith took the position that Middle Eastern detainees could not call on the G.C. for protection at all, even under Common Article 3? Because the first point is not one I ever disputed.
You say that Common Article 3 was not a part of the Feith-Sands interview discussion. But that is not true. Sands did ask Feith about C.A. 3, precisely because Feith was insisting that Middle Eastern detainees were not entitled to POW status and thus had no rights they could call on in the G.C.
To wit:
This is not changing the topic, Lex. It is bringing in the context that Mirengoff left out and that you don’t know about because you did not read Sands’ book. Mirengoff’s argument is that Sands misrepresented Feith’s position. But, in fact, Sands did not misrepresent Feith’s position.
I think I will leave it at this, because when any argument shifts from the disagreement itself to accusations of “effectively conceding the argument by changing the topic” that tells me that the person one is arguing with does not want to continue the argument but, for whatever reason (I will not speculate on motivation because it’s not fair to do so) prefers not to actually say that, and thus begins to use nonsubstantive rhetorical self-defense strategies to end the argument.
I don’t have any wish to upset you or anger you or challenge your belief system. I like you, I think you’re an interesting, intelligent person, and I have enjoyed our friendly non-political conversations enough that I don’t want to endanger that.
So enough of this for now.
Damn it all to hell. I forgot to put in the ending blockquote tag. It’s probably clear where that should have gone, but I really hate it when I make a mistake like that and miss it.
I’m sorry.
Oh, I’ve got your html back. Never to fret. As for the rest, I’ll come back when there’s a moment for more than editing.
OK, I’ve re-read the interview transcript at length, and nowhere in there does either Feith or Sands refer to common article 3, which as we’ve already discussed “applies minimum standards” to those in conflicts not of an international character – standards lower than those imposed by CA 4, dealing with POW status under Geneva.
Mirengoff’s point – and I believe the transcript bears this out – is that Sands deliberately conflated Feith’s take on CA 4 – that the Taliban were not to be afforded “proper” POW status – with a general complaint that he would not afford them any Geneva protections, including those under CA3 – which Feith at least implicitly did do.
Mirengoff labels Sands’ characterization of that conversation deceptive, and I’m inclined to agree with him. As for the promise to review quotations in context with Feith prior to publication, I’ve no primary sources to reference there, but as I said it makes sense in context and I’ve no reason to doubt Mirengoff on that point.
In his Vanity Fair article, written in support of this book, Sands says:
Which again sounds like a dishonest characterization of that discussion to me. The CA3 standard – which again, never came up in the transcript, means “humane” treatment, precisely what Feith did say in that interview, adding that the operational definition of that needed to be “fleshed out.”
The discussion on whether this distinction under CA4 was a wise one, morally, legally or politically is separate from the discussion of the facts within the interview and the way that Sands characterized them in his testimony to the Senate committee.
Oh my gosh, thank you, Lex! That was really nice of you to fix up the html for me.
I was out for a while, but I’ll at least read what you wrote if not comment.
The CA3 standard – which again, never came up in the transcript, means “humane” treatment, precisely what Feith did say in that interview, adding that the operational definition of that needed to be “fleshed out.”
The CA3 standard, though, is much more specific and detailed than the phrase “humane treatment.” Indeed, one might say that the language of CA3 “fleshes out” what is meant by “humane treatment.” So there was no need to go through that “fleshing out” process again.