What is the Debate over Detainee Treatment About?

Current US law makes it a crime to commit "war crimes" as listed in treaties that the United States has signed. The current US Code (18 USC 2441) states (my emphasis):

(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Note that (c)(3)defines any violation of common Article 3, not just grave breaches of the Geneva protocols. Common Article 3 states, in part:

Article 3

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;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Eight Techniques Below: Authorized: FM 34-52 technique – Ego down and Futility.

Finding #16b: On 06 Dec 02, the subject of the first Special Interrogation Plan was forced to wear a woman’s bra and had a thong placed on his head during the course of the interrogation...

Finding #16e: On 20 Dec 02, an interrogator tied a leash to the subject of the first Special Interrogation Plan’s chains, led him around the room, and forced him to perform a series of dog tricks.

would seem to violate common Article 3, and therefore the interrogators have committed a war crimes as defined by the US Code.

The Bush administration has proposed changing 18 USC 2441 so that (c)(3) is deleted and this is added:

d) Covered Common Article 3 Violations-

`(1) SERIOUS VIOLATIONS- In subsection (c)(3), the term `serious violation of common Article 3 of the 1949 Geneva Conventions' means any of the following:

`(A) TORTURE- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical pain or suffering or severe mental pain or suffering (as such term is defined in section 2340(2) of this title), other than pain or suffering incidental to lawful sanctions, upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

`(B) CRUEL OR INHUMAN TREATMENT- The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe physical pain or suffering or severe mental pain or suffering (as such term is defined in section 2340(2) of this title), other than pain or suffering incidental to lawful sanctions, and including severe physical abuse, upon another person within his custody or physical control.

`(C) PERFORMING BIOLOGICAL EXPERIMENTS- The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments and in so doing endangers the body or health of such person or persons.

`(D) MURDER- The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause.

`(E) MUTILATION OR MAIMING- The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.

`(F) INTENTIONALLY CAUSING GREAT SUFFERING OR SERIOUS INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury (as such term is defined in section 113(b)(2) of this title) to one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause.

`(G) RAPE- The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object.

`(H) SEXUAL ASSAULT OR ABUSE- The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact (as such term is defined in section 2246(3) of this title) with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact (as so defined).

`(I) TAKING HOSTAGES- The act of a person who--

`(i) having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons; or

`(ii) attempts to engage or conspires to engage in conduct under clause (i).

Note that in this proposed legislation, only serious violations of common Article 3 are banned, and those are now defined such that "cruel or inhuman treatment" is identical to torture. Humiliating or degrading treatment would not be a crime and physical or mental pain or suffering that is not considered severe (i.e., mild or moderate) would not be a crime.