By The Progressive on August 03, 2006
Detainee treatment: a second chance to get it right
By Retired Adm. John D. Hutson

August 3, 2006

The Supreme Court gave Congress and the Bush administration a second chance to demonstrate that they have turned a page on kangaroo courts and prisoner abuse. But the administration now wants to make Congress its accomplice in dodging the court's decision. Congress should resist.

In June, the Supreme Court reaffirmed what military lawyers and others have been saying from the beginning: The military commissions convened in Guantanamo and many of the interrogation techniques authorized there are unlawful.

But the administration is now asking Congress for a blank check to establish the same ill-conceived commissions that the court just rejected.

At the same time, the administration wants Congress to pull back from even the most minimal standards of humane treatment in the Geneva Conventions.

The Supreme Court made crystal clear that detainee trials must be congressionally authorized and must comply with Common Article 3 of the Geneva Conventions -- which requires that trials be in "regularly constituted" courts that afford "all the judicial guarantees which are recognized as indispensable by civilized peoples."

If Congress wants to find a roadmap for these trials, it should go to the bookshelf of any U.S. military judge advocate and pull out the big red book that contains the Uniform Code of Military Justice and Manual for Courts-Martial.

Unlike the Guantanamo military commissions, which were the creation of the executive branch, the code of military justice is a statute enacted by Congress that has been effectively used for more than 50 years.

Together with the courts-martial manual, the code provides a framework of military justice that can be used successfully to try terrorists and other war criminals.

If realities on the battlefield make some of the code's provisions impractical for these trials, Congress may then thoughtfully debate the merits of any proposed changes. Either way, the Uniform Code of Military Justice is respected by the military and has already withstood the Supreme Court's scrutiny.

For such trials to be worthy of this country, Congress must also ensure that detainees are not mistreated during interrogation.

As a result of the Supreme Court's ruling, the Department of Defense ordered all military personnel to adhere to the minimal standards of treatment laid out in Common Article 3, an apparent reversal of the president's own order issued more than four years ago.

But administration lawyers and some senators are now arguing that Common Article 3's prohibition against "outrages upon personal dignity, in particular, humiliating and degrading treatment" is too vague and must be redefined.

Congress should not tinker with the obligation of humane treatment. Last year, in response to the torture scandal at Abu Ghraib, Congress overwhelmingly passed a law that banned cruel, inhuman and degrading treatment of prisoners in U.S. custody, no matter who or where they are, or what we think they might know. This was an important step toward restoring our national honor, and it gave our troops the clarity they need to guide them in the chaos of battle. To reverse course now and suggest that the baseline standard of the Geneva Conventions is something we cannot live with would be a grievous error.

What's more, if we step back from this standard, we would put our own military personnel at increased risk in this war and the next.

Of the 192 nations that have ratified the Geneva Conventions, none has ever sought exceptions to the obligation of humane treatment. If the United States becomes the first, others will follow. And our troops would be the ones to suffer.

Retired Adm. John D. Hutson served as the Navy's Judge Advocate General from 1997 to 2000. He now serves as president and dean of the Franklin Pierce Law Center in Concord, N.H. He can be reached at pmproj@progressive.org.

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By Wendell Berry

Manifesto: The Mad Farmer Liberation Front

Love the quick profit, the annual raise,
vacation with pay. Want more 
of everything ready made. Be afraid 
to know your neighbors and to die.
And you will have a window in your head.
Not even your future will be a mystery 
any more. Your mind will be punched in a card 
and shut away in a little drawer.
When they want you to buy something 
they will call you. When they want you
to die for profit they will let you know. 
So, friends, every day do something
that won’t compute. Love the Lord. 
Love the world. Work for nothing. 
Take all that you have and be poor.
Love someone who does not deserve it. 
Denounce the government and embrace 
the flag. Hope to live in that free 
republic for which it stands. 
Give your approval to all you cannot
understand. Praise ignorance, for what man 
has not encountered he has not destroyed.
Ask the questions that have no answers. 
Invest in the millennium. Plant sequoias.
Say that your main crop is the forest
that you did not plant,
that you will not live to harvest.


Say that the leaves are harvested 
when they have rotted into the mold.
Call that profit. Prophesy such returns.
Put your faith in the two inches of humus 
that will build under the trees
every thousand years.
Listen to carrion—put your ear
close, and hear the faint chattering
of the songs that are to come. 
Expect the end of the world. Laugh. 
Laughter is immeasurable. Be joyful
though you have considered all the facts. 
So long as women do not go cheap 
for power, please women more than men.
Ask yourself: Will this satisfy 
a woman satisfied to bear a child?
Will this disturb the sleep 
of a woman near to giving birth? 
Go with your love to the fields.
Lie easy in the shade. Rest your head 
in her lap. Swear allegiance 
to what is nighest your thoughts.
As soon as the generals and the politicos 
can predict the motions of your mind, 
lose it. Leave it as a sign 
to mark the false trail, the way 
you didn’t go. Be like the fox 
who makes more tracks than necessary, 
some in the wrong direction.
Practice resurrection.

Wendell Berry is a poet, farmer, and environmentalist in Kentucky. This poem, first published in 1973, is reprinted by permission of the author and appears in his “New Collected Poems” (Counterpoint).

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