A Day of E-Papering the Record on Detainee Rights

"The world is beginning to doubt the moral basis of our fight against terrorism," Gen. Colin L. Powell wrote yesterday in a letter to Sen. John McCain (R-Ariz.) as the political battle is joined again over how to treat terror detainees both before and during their military trials. "To redefine" more narrowly Article III of the Geneva Conventions (as the Bush Administration seeks) "would add to those doubts." Powell wrote in a three-paragraph note made public today. "Furthermore, it would put our own troops at risk." Case closed, right? After all, if Gen. Powell thinks the Administration's end-run around the Geneva Conventions is a bad idea, and since even the current crop at this White House can't "Swift Boat" Powell, his brief letter seals the deal for opponents of the measure, right?

But wait. The General's letter wasn't the only one making the rounds today. In fact, the flurry of formal posturing reminds me of my lazy, hazy, crazy days as a practicing lawyer. We are witnessing a "papering of the record"-- by the way, the legal world needs a new phrase to incorporate the electronic means of accomplishing this feat-- as "CYA" and "to supplement the record" emails are flying back and forth among the highest levels of government. It's a sure sign that the showdown (at least for this round pending Supreme Court review) is truly at hand between the White House and its Congressional opponents over what our laws should say about how we treat these detainees, from capture through trial.

There is the Powell Letter. There is a letter from Gen. Powell's successor, Condoleeza Rice, to Senate Armed Services Committee Chairman John Warner, in which the Secretary of State assures the powerful Senate leader that the proposed change to federal law would strengthen, not weaken, the country's commitment to the Geneva Conventions (this, remember, from an Administration that sought in federal court to diminish the legal import of the Conventions).

There is a letter from some military lawyers to Duncan Hunter, the Chairman of the House Armed Services Committee, essentially making sure he knows that they are all for the change in the law. And lest they be forgotten as the minority party there is a letter from a few dozen House Democrats warning the Justice Department that it shouldn't try "to amend the War Crimes Act of 1996 to shield U.S. personnel who have violated the Geneva Conventions. Creating exemptions from international laws governing the treatment of prisoners during wartime seriously endangers our troops abroad, as well as Foreign Service officers and other Americans living abroad."

It's nice that they all want to be pen-pals. I just hope they get it right this time.


By Andrew Cohen |  September 14, 2006; 3:30 PM ET
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Thank God. There is finally some sense percolating to the top on this one! How is it that lowering our standards to those of the terrorists themselves make us any safer? We are supposed to be better then that. Somewhere along the way this administration has forgotten what this country stands for...what the responsibilities of freedom really mean. Yes, in the short term there is a level of risk, but in the long run, our morals, our principles, and yes our civil liberties are much more important. If we are truly a proud and brave people, we will stick by these things that make us great - even in the face of danger - and stare down that danger and succeed in spite of it. Conversely, if we don't stand by these things we have allowed the terrorists to win, and this country will fall.

I wish we would put the hysteria behind us and move forward. Many more people die from car crashes or walking across the road or even peanuts then die in terrorist attacks. We as a people need to learn how to manage risk, and our leaders need to stop using fear and intimidation to lead and instead to help the people to effectively manage that risk.

Posted by: Lance | September 14, 2006 05:32 PM

Let's see more bill numbers and titles in these stories. Neither the Washington Post or the New York Times has the bill numbers for the various bills being considered.

Who, What, When, Where, Why, people.

Posted by: John Nagle | September 14, 2006 06:05 PM

I guess I want to hear one of these people with the megaphone stand up and say, "Yes there is danger, and yes there are people who want to kill us, but there are some things worth dying for, and one of them is the idea that we fight our enemies without becoming them.

There are some things worth dying for, the moral highground is one of them.

There are things worse than death, and becoming a tyrannical is one of them.

Posted by: James | September 14, 2006 09:27 PM

The leaders of a government that would arrogate unto themselves the right to single-handedly abridge our constitutional freedoms and the rule of our laws are more to be feared than any terrorist wanting merely to kill us.

Posted by: Ernie | September 14, 2006 10:03 PM

Agreed, those folks running around like scared, vindictive children are not leaders, they are followers. They follow their fears. Their fears are the part of their brain that does NOT think. That does NOT reason. That does NOT understand. Their fears are NOT courageous. Their fears WILL perpetuate the violence. Their fears WILL lead them INTO darkness with the only hope of escape being a rather blind and unknowning belief that their own violence and power over others will somehow keep them safe. It is such a self-centered point of view; If I kill all my enemies, then I will be safe. That is fear speaking. The fearful will never be safe. They will never be able to kill all their enemies.

Posted by: kloepper | September 14, 2006 10:39 PM

Why is everything about a "moral basis" to these people (conservatives)? Who cares about: morality, strength, courage, honor, stamina, resolve, & patience, when holding combats that are of these sizes? They do not matter. The point of the actions that we are taking should be primarily about what every preceding decent, necessary, and on-count war should be about: maintaining a strategic counter to those that have the capabilities of delivering massive damage to locations that are easy to attack. This is what the second world war was about, the first Gulf War, and all of the other strictly defense-oriented wars were of.

In other words... "moral basis" have absolutely no barring in a true war. Neither do all of the other rancid propaganda that the right wing seem to espouse on a regular basis. In a true war, our "gut instincts" should not matter at all. I am so upset that we have an administration (Colin Powell: 2000 - 2003)that seem to hold so minute responsibility in the actions and decisions that have taken this whole entire campaign to newer and uglier lows.

Until we gain a real cabinet that understands the ultimate duties that are to be kept in solid alignment, we will not be able to have any sort of stable war footing in any nation--- especially the Middle East.

(P.S.: It would be nice to have an administration in power that assuredly knows the difference between "weapons of mass destruction" and nuclear reactors. They are not one in the same.)

Posted by: Oh, to have a Blog... | September 14, 2006 10:41 PM

All I can say is that it is an enduring source of shame to me as an American that the only other country that publicly announced that it would not abide by the Geneva Convention against "enemy combatants" was Nazi Germany when it invaded Russia in 1941.
The weight of professional opinion appears to be that torture (or torture-like)tactics do not provide useful information. The standard for war crimes trials was set by this nation at Nuremberg. Terrorism only defeats us when we lower our own standards for fear of an over-exaggerated "clash of civilizations."

Posted by: Cliff Martin | September 14, 2006 11:37 PM

One little comment on this topic. US Government is willing to change the law in order to protect his own CIA agent to be judge for "war crimes". If you say so, this means that this administration is recognizing that they have commited such crimes. What can people think of a criminal saying I wanted to have the law changed in order not be guilty any more? Would you accept this new law?
If yes you can put in the bin what ever kind of undersigned international laws from past, present and future. Is that really what democracy and justice is? Change laws when they are no more in your favour and with no agreement from all the people that have undersigned it. Well I hope not, otherwise we are as bad as the people we are willing to fiht.

Posted by: Philippe Barbier | September 15, 2006 06:58 AM

Does anyone realize that when these animals capture one of our troops, they typically strip them naked, beat them to death, drag the corpse around the street for everyone to kick and spit on and then hang the body from a lamp post so Al Jahzeera has a prime time news report?

Maybe its time to amend the War Crimes Act. Maybe its time to use similar tactics. Maybe torture will work.

The British walked down the streets, in formation, wearing red uniforms with specific, formal rules of engagement while the colonists wore regular clothes and hid amongst the people and used gurilla tactics.

And won the war.

Posted by: Jeff | September 15, 2006 07:10 AM

No one wins in war.

Posted by: Kricknit | September 15, 2006 07:32 AM

We also broke peace treaties we never intended to keep with the Indians, and then we slaughtered them. We also enslaved an entire race for two centuries. Should we as a people agree that the best method for us as a people to move forward in our humanity would be to ignore our history? The lessons of history are there to be learned from, so that they are not repeated. Many are comparing this conflict to WWII, but the only comparison that can be made is duration. We cannot compare the lives lost or lessons learned by the previous generation as comparable to this relatively small skirmish. If the corrupt Right is so anxious to rewrite laws, why don't they start with Gods laws in which they profess to uphold with moral supremacy?

Posted by: Kricknit | September 15, 2006 07:55 AM

The Karl Rovian Right professes to be more Christian than its liberal opponents. But Christ preached non violence. I guess the Karl Rovian Right-Wing takes as its example Constantine, who used Christianity to wage a Crusade where rape, pillage and plunder motivated the troops. Didn't Bush initially call this war a crusade?

Posted by: Dave, Freeport, IL | September 15, 2006 08:10 AM

Jeff said: "Does anyone realize that when these animals capture one of our troops, they typically strip them naked, beat them to death, drag the corpse around the street for everyone to kick and spit on and then hang the body from a lamp post so Al Jahzeera has a prime time news report?

Maybe its time to amend the War Crimes Act. Maybe its time to use similar tactics. Maybe torture will work."

So you'd like us to become "animals", as well? Thanks, but no thanks.

Posted by: irae | September 15, 2006 10:50 AM

I'd like to see the Washington Post do an article on the effects of torture on the detainee. There must be a large numbers of foreign refugees and US military veterens, who've experienced these techniques themselves.

I wonder why we as a nation should believe that what the Bush Admininistration claims is moral and right, actually is. For some time now, they have been insisting on using techniques that include "waterboarding", something the Gestapo practiced on members of the French Resistance, with minimal results.

By abusing and torturing our prisoners, we have debased ourselves in our own eyes and in the eyes of the world. We reinforce the worst opinions of us in the Arab and Muslim community and bring sahme upon ourselves.

George Bush keeps insisting that we are bringing Democracy to the Middle East, yet I dont 'think torture was was what the Founding Fathers would have had in mind as vechicle to get there.

Posted by: | September 16, 2006 09:13 PM

Let's see, for the the great American patriot/historian who anonymously posted "...Founding Fathers would have had in mind....", they must be real proud of us for the following treatment of Guatanamo detainees..... 8 hours sleep, 2 hours outdoor recreational, 3 halal meals (i.e. 4000 calories), 5 prayer times and 2 hours of no-physical-contact-allowed interogation daily. Plus unlimited access to fully resourced library, indoor games including pool and ping pong, top notch medical and dental health care, unlimited and private access by legal defense counsel/s. 22 detainees have prosthetics, 500 pairs if dentures, 100+ prescription eye-glasses all tax-payer funded.....and the list goes on! Where do i queue up for a tax-payer funded stint at this health farm?

Yeah right, perfect time for all the BS utopian mindset and the laughable reverence to the thoughts of a bunch of dead pilgrims....but wait, I get your drift, we really give a S*&T because we're about to join them real soon, especially if you and the editorial board of this paper get to have a say on how we should conduct ourselves in war or peace! Get real!!!

Posted by: Harry Lee | September 17, 2006 07:11 AM

It will be interesting to discover whether the "deal" reached between the White House and the rebel Republicans (McCain, Graham, Warner, et al) will address the subject of "extaordinary rendition." This is a program that grossly violates not only the Geneva Conventions but also a number of other US-signed treaties, including the Covenant Against Torture 9CAT).

Posted by: WILLIAM FISHER | September 21, 2006 07:59 PM

In better times, I will and have subscribed to the idealistic beliefs that resulted in the Geneva Convention and/or Covenant Against Torture. However, if torture can yield any information that can save any live/s and/or prevent the death/s of innocent men, women and children (i.e. one of which could very well be a member of my family...or YOURS!), by all means do so!
To be fair, if any innocent victim/s should have to be sacrificed in pursuit of this "fair and balanced" sense of "moral equivalence", they should come from the families of those who advocate for a more TLC approach in interrogating and/or detention of terrorist suspect/s. I'd rather be a whole living person with compromised morals than blown-up pieces of an idealist with a record crowd of ninnies at my cremation/burial ceremony.

Posted by: Harry Lee | September 23, 2006 05:58 PM

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