They Liked It When It Was McCain’s Idea

Yesterday the New York Times editorialized against the administration’s bill to authorize military commissions to try al Qaeda detainees. The editorial is over the top even for the Times; a principal grievance is that the administration is moving too quickly to comply with the Hamdan decision, which came down in June. The Times thinks that the administration is moving with undue haste; its editorial is titled “Stampeding Congress,” and the paper harrumphs that the administration must be acting so precipitously only because the elections will take place in a couple of months:

To lend his lobbying an utterly false sense of urgency, President Bush announced last week that he had taken 14 dangerous terrorists from the secret Central Intelligence Agency prisons where he had been holding them for years and sent them to Guantánamo to stand trial. But none of the prisoners is going anywhere, and the current high-pressure timetable is related only to the election calendar.

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There is no urgency.

In any other context, of course, the Times would be complaining that the administration is being dilatory in complying with the Supreme Court’s mandate. The paper’s position appears to be that the administration has a duty to time all of its actions so as to promote the interests of the Democratic Party. Sort of like the Times does with its reporting.

For the moment, though, I want to focus on something else. The Tmes writes:

One section of the administration bill would put American soldiers in grave jeopardy by rewriting the Geneva Conventions, condoning the practice of hiding prisoners in secret cells, and permitting the continued use of interrogation methods that violate the Geneva Conventions at the C.I.A. prisons.

Can the Times possibly be so out of touch that it does not realize that American soldiers captured by al Qaeda are already in “grave jeopardy”? The paper continues:

Senators Warner, McCain and Lindsey Graham have formed a principled spine of resistance against their party’s attempt to steamroller the White House legislation through Congress.

In this, the Times merely joins a media chorus of praise for the renegade Republicans who have joined the Democrats in objecting to the administration’s attempt to “rewrite” or “undermine” Common Article III of the Geneva Convention. The reason the legislation addresses Common Article III is that the Hamdan decision held (wrongly, I think) that Article III applies to capured terrorists. Here is the relevant language of Article III:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

The Supreme Court’s holding in Hamdan that Common Article III applies to our war against al Qaeda rests on the Court’s finding that the war on terror is not a “conflict of an international character.” Nevertheless, however shaky the basis of the Court’s holding may have been, the administration has properly undertaken to comply with it.

The administration’s proposed statute, the Military Commissions Act of 2006, is accessible here. It is a painstakingly conscientious effort to establish a system of military tribunals that will satisfy Hamdan. The statute is some 86 pages long; I would highly recommend that you at least skim it to gain some impression of the good faith with which the administration has tried to follow Hamdan’s misguided mandate.

Only a small portion of the statute, beginning at page 78 with Section 6, is directed to the Common Article III issue. This is the portion of the act, however, that has generated the most controversy, and was fiercely attacked by the Times. Yesterday, press secretary Tony Snow tried to explain this part of the statute to a willfully obtuse pack of White House correspondents:

We believe that it’s important to outline very clearly our obligations under law, under the Constitution, and in international treaties. Some of the language in Common Article II — Common Article III — I’m sorry — is vague. It is not unusual for the United States Congress in such circumstances to use legislation as a way of making clear our treaty obligations. We’ve done it with the Genocide Convention Implementation Act; we’ve done it with the Suppression of the Financing of Terrorism Convention Implementation Act — that was in 2002; the Extradition Treaty’s Interpretation Act of 1998; and a number of others. So it’s standard procedure when you have vague language to go ahead and try to clarify it.

In the case of Common Article III, of course, you have had some of — the “prohibitions against cruel, inhumane or degrading treatment or punishment” — that’s important to figure out what that means. As you know, in —

Q It’s vague to you?

MR. SNOW: Yes, it is.

Q Mean, cruel, inhuman, degrading?

MR. SNOW: Yes, because you have to specify exactly what you mean.

Q Keep smiling. (Laughter.)

Snow continued:

[I]f you have people in the field trying to question terrorists, if you do not have clear legal definitions, they themselves will be subject to the whims and the differing interpretations given by foreign courts, foreign judges, and foreign tribunals. And we don’t think that’s appropriate. The President wants the program to continue, but in a way that is clear and legal, constitutional and comports with treaty obligations, as I said before.

So, the question arises, all right, you’re trying to figure out, what is your term? How do you define these vague terms? And we settled on a simple answer — the very terms that John McCain used last year in the Detainee Treatment Act, because we think they’re appropriate. So we’re using the standard laid out by Senator McCain and we are now applying it to Common Article III, the Geneva Conventions.

For a depressing demonstration of the intellectual limitations of the White House press corps, read what followed. But the administration’s approach is obviously sensible and logical: we have already enacted a statute, the Detainee Treatment Act of 2005, largely at the insistence of Senator McCain and his sidekick Lindsey Graham, which tells our servicemen and intelligence agents how they are supposed to treat detainees. So the connection is obvious: if they treat detainees consistent with the directions given in that statute, then, as far as the U.S. government is concerned, they have satisifed the standards imposed by Common Article III.

This struck me as so self-evidently reasonable, that I found it hard to believe that the Times and other critics of the administration’s proposal are actually opposed to it. So I decided to verify what Snow said. The Detainee Treatment Act of 2005 is here. Section 1003(d) says:

Cruel, Inhuman, or Degrading Treatment or Punishment Defined– In this section, the term `cruel, inhuman, or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

That is the language that McCain insisted on last year. Sure enough, just as Tony Snow said, that provision is incorporated into Section 6 of the administration’s proposed Military Commissions Act:

SEC. 6. SATISFACTION OF TREATY OBLIGATIONS. (a) IN GENERAL.—Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in Section 1003 of the Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119 Stat. 2739; 42 25 U.S.C. 2000dd) shall fully satisfy United States obligations with respect to the standards for detention and treatment established by section 1 of common Article 3 of the Geneva Conventions, with the exception of the obligations imposed by subsections 1(b) and 1(d) of such Article.

So the administration incorporated Senator McCain’s language into the Military Commissions Act, and the Times and other critics say the act is “undermining” Common Article III. Which leads to the question: What did the Times’ editorialists write when precisely the same terms now used in the Military Commissions Act were incorporated into the Detainee Treatment Act of 2005, pursuant to McCain’s amendment? From the Times’s editorial titled “Playing With Fire,” dated November 12, 2005:

It certainly is a relief that the Senate is finally getting around to doing the job it so shamefully refused to do four years ago, after the 9/11 attacks: requiring the administration to follow the law and the Geneva Conventions in dealing with prisoners taken by the military and intelligence operatives.

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Senator Graham argues that the 9/11 attacks were an act of war, not a crime for American courts to judge, and he is trying to put antiterrorist operations back under the Geneva Conventions. Mr. McCain’s amendment banning torture, abuse and cruelty has the same goal, and we share it.

So the very amendment that, less than a year ago, the Times applauded because it “bann[ed] torture, abuse and cruelty” would now “put American soldiers in grave jeopardy by rewriting the Geneva Conventions.”

But you can’t really accuse the Times of inconsistency. The paper is consistent, all right: consistently hysterical about anything that is done by the Bush administration.