June 5, 2006
The US military is preparing a new version of the Army Field
Manual that will eliminate language prohibiting "humiliating
and degrading treatment" of prisoners held in US custody,
according to a report published Monday by the Los Angeles Times.
The new manual would be a further step in the repudiation of international
law and the codification of torture as a component of US interrogation
Summarizing the essence of the discussions, the Times quotes
an individual described as being familiar with the debates in
the Pentagon as saying: "The overall thinking is that they
need the flexibility to apply cruel techniques if military necessity
By altering the language of the Field Manual, which is the
standard of conduct for all US soldiers on the ground, the Pentagon
is sending a signal to the military as a whole: prisoner abuse
will continue to be tolerated and encouraged.
The new version of the Army’s manual on interrogation
was due out earlier this year but has been delayed amidst disputes
within the political establishment over how to formulate interrogation
policy. One of the issues in this dispute, according to the Times,
centers on language in the manual that repeats standards included
in Common Article 3 of the Geneva Conventions.
Common Article 3 prohibits "at any time and in any place
whatsoever...violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and torture, [and] outrages
upon personal dignity, in particular, humiliating and degrading
treatment." This passage was intended as a basic standard
for the humane treatment of all prisoners, whether or not they
were officially classified as POWs, who under the Geneva Conventions
are accorded more extensive rights.
The Times does not state explicitly how the Pentagon
is seeking to modify the language—whether the entire passage
from Common Article 3 will be eliminated or only the final clause.
Regardless, the effect of the change will be to condone a number
of techniques that, in fact, amount to torture.
According to the Times, "The military has long
applied Article 3 to conflicts—including civil wars—using
it as a minimum standard of conduct, even during peacekeeping
operations.... But top Pentagon officials now believe Common Article
3 creates an 'unintentional sanctuary’ that allows Al
Qaeda members to keep information from interrogators."
The new language would be only the latest in a series of moves
by the Bush administration to undercut international law and legitimize
torture as an instrument of US policy, using the "war on
terrorism" as a pretext.
Shortly after the invasion of Afghanistan, the Bush administration
declared that prisoners captured during the conflict (including
those the US government decided to identify as either Taliban
or Al Qaeda) would not be given POW status under the Geneva Conventions.
At the same time, it declared that these prisoners would be denied
protections under Common Article 3, on the spurious grounds that
this section applied only to "armed conflicts not of an international
The basic intent of the Bush administration’s argument
was to create a category of prisoner, the "unlawful combatant,"
who would be completely outside of any protections under international
law. These combatants could include anyone, including US citizens,
picked up in any part of the world. At the same time, administration
lawyers, including then-White House counsel and current Attorney
General Alberto Gonzales, were drafting memoranda that argued
for the president’s constitutional authority as commander-in-chief
to order torture.
One problem that the administration confronted, however, is
the fact that the military’s own guidelines, included in
the Army Field Manual, contain language prohibiting the types
of techniques that the Pentagon has begun to employ. While the
manual is not US law, it is a critical formulation of military
policy and is also considered important in determining "common
law," the set of basic human rights principles to which all
countries are considered bound under international law.
The language in the Army manual was highlighted in March of
this year, when a group of military lawyers (judge advocates general),
who have on a number of occasions come into conflict with the
administration on the question of torture, submitted a memo to
the Senate Armed Services Committee concluding that several of
the techniques employed at Guantánamo Bay violated the
manual because they are "humiliating and degrading."
The Washington Post reported on March 16 that the lawyers
"wrote that forcing a detainee to wear a woman’s
bra and thong underwear on his head, insulting a detainee’s
mother and sister, calling a detainee a homosexual and implying
that others know he is a homosexual, forcing a detainee to perform
dog tricks, and forcing a detainee to stand naked in the presence
of female soldiers would not be consistent with the Army’s
policy." All of these techniques have been used on prisoners
in Guantánamo Bay. They are not far removed from the techniques
photographed at Abu Ghraib.
One argument the administration has employed to get around
the Army Field Manual has been that the manual supposedly applies
only to prisoners protected by the Geneva Conventions.
This was one of the central issues behind a dispute that emerged
within the political establishment last year over an amendment
that would require the military to follow the field manual for
all prisoners under its control. The amendment, attached to the
Defense Appropriations bill last year and associated primarily
with Republican Senator John McCain, prohibits torture and states
that no person under the control of the Department of Defense
"shall be subject to any treatment or technique of interrogation
not authorized by and listed in the United States Army Field Manual
on Intelligence Interrogation."
At the time, Vice President Dick Cheney strongly opposed the
amendment, intervening personally in an attempt to get McCain
to drop support for it, and the Bush administration threatened
a veto. After it was nevertheless passed by Congress with a veto-proof
majority, Bush, upon signing it, declared that it would be interpreted
in a manner that did not violate the constitutional powers of
the President as commander-in-chief—powers that administration
lawyers have argued include torture.
In part as a response to the amendment, the Pentagon has moved
to include wording in the Army Field Manual to allow the sorts
of techniques that it has already been using—including, in
particular, sexual humiliation.
Cheney has reportedly been principally behind the attempt to
eliminate the Common Article 3 language from the new manual. The
Times reports that the inclusion of the Geneva Convention
language was "opposed by officials from Vice President Dick
Cheney’s office and by the Pentagon’s intelligence arm,
government sources said. David S. Addington, Cheney’s chief
of staff, and Stephen A. Cambone, defense undersecretary for intelligence,
said it would restrict the United States’ ability to question
The aim of these officials is not only to specifically eliminate
the language on humiliation, but more generally to break the correspondence
between the provisions of the Army manual and the Geneva Conventions.
This is intended to underscore the fact that the US does not consider
itself to be bound by international law and human rights standards.
The divisions within the political establishment over this
issue do not reflect fundamental differences over policy, but
rather the gloss that this policy is given publicly. On the one
hand, Vice President Cheney and his staff, along with Defense
Secretary Donald Rumsfeld and Attorney General Alberto Gonzales,
have been pushing for a more open declaration of the US government’s
right to abuse prisoners picked up in the "war on terrorism."
In addition to the desire to create a pseudo-legal foundation
for torture, there is concern within these circles that administration
officials could end up being prosecuted for authorizing techniques
that are blatantly illegal.
On the other hand, officials within the State Department and
some in Congress have raised concerns that the open disavowal
of international law in relation to prisoner abuse has undermined
the human rights pretenses of the United States. The LA Times
notes in its article that revisions in the manual "may
make it more difficult for the administration to portray such
incidents [as Abu Ghraib and the massacre of Iraqi citizens in
Haditha] as aberrations. And it undercuts contentions that US
forces follow the strictest, most broadly accepted standards when
What the discussions over the Army manual reveal, however,
is precisely that these incidents are not aberrations, but products
of a definite policy—a policy that includes the assertion
of unlimited powers of the president as commander-in-chief, the
practice of rendition to countries that practice torture, the
setting up of CIA prisons around the world where prisoners are
held in secret and abused, and the assault of democratic rights
within the United States.