The Torture Narrative

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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Today the House Judiciary Committee will finally get to hear testimony from Douglas Feith. The former undersecretary of defense for policy is alleged in a new book, “Torture Team,” by a British lawyer, Phillipe Sands, to have essentially invented the legal argument that the legal protections of Common Article III of the Geneva Conventions did not apply to Al Qaeda or Taliban prisoners of America.

Secretary Feith was set to appear before the committee last month, but refused to be seated on the same panel as a former chief of staff to Secretary of State Powell, Lawrence Wilkerson, who is putting out the libel that Mr. Feith is a war criminal. A clue as to where Mr. Wilkerson is coming from can be found in his suggestion that Mr. Feith was an Israeli foreign agent, a “card carrying member of the Likud party.”

Mr. Wilkerson was called in by the House body chaired by John Conyers, a man who has drawn a case for impeachment against President Bush based on the charges of manipulating pre-war intelligence. That story evaporated in recent months because even the partisan second report from the Senate Select Committee on Intelligence does not support the conspiracy theories of the original anonymous “whistle blowers” who in 2003 and 2004 formed what became the conventional wisdom for the Democrats today about the Iraq war.

The latest line from these Democrats is that Mr. Feith’s supposed argument in early 2002 about the Geneva Conventions was directly responsible for the horrors of Abu Ghraib, the torture at Bagram Air Force base, and the Central Intelligence Agency’s use of waterboarding. This line, echoed in a Frank Rich column over the weekend, is based on the book by Mr. Sands, who interviewed Mr. Feith.

It turns out that President Bush went with the argument Mr. Sands attributes to Mr. Feith. On February 7, 2002, he announced that he had determined that Common Article III of Geneva, which among other things grants detainees protections against “Outrages upon personal dignity, in particular humiliating and degrading treatment,” and insures prisoners “shall in all circumstances be treated humanely,” did not apply to captured Taliban and Qaeda fighters. Mr. Bush contended that the Geneva provision did not apply because, “among other reasons, the relevant conflicts are international in scope and Common Article III applies only to ‘armed conflict not of an international character.'”

However, Mr. Feith, contra Mr. Sands’s claim, says he never argued this point inside the administration. To the extent that Mr. Feith did enter the fray in respect of the Geneva Conventions, he did so, he says, to argue that Geneva applied to the conflict between America and the Taliban, but that the Taliban were not entitled to be classified as prisoners of war because their fighters did not wear uniforms, did not brandish their guns in public, did not adhere to a chain of command, and did not follow the rules of war.

No doubt Mr. Feith will be able to take care of himself today when he faces the Democrats out to demonize him. But a larger issue is at stake here. The Democrats would like the country to believe that the president’s decisions in 2002 on the application of Geneva to Al Qaeda and the Taliban paved the way to the abuses in Abu Ghraib. But no evidence has been adduced for this. Abu Ghraib was the crime of a poorly disciplined reserve battalion and a catastrophic failure of command. And cases where innocent individuals died in the custody of American soldiers and spies, these instances deserve and have received thorough investigation. No such instance has resulted from high level policies.

What distinguishes civilized states from the terrorists is not the interpretation of international law; reasonable people disagree on Geneva, as evidenced by the 2006 split Supreme Court decision in Hamdan v. Rumsfeld that did apply Common Article III to terrorists. It is rather the will to enforce the law when it is violated. On this score, President Bush has conducted the war with honor and has bowed to our courts at every turn, in full compliance of his constitutional oath.


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