I'm going to start with the central topic of Tuesdays hearing with Prof. Feith -- central in the sense that most of Feith's arguments revolved around it even though the questioning never quite managed to reach the nuts and bolts of the thing. (My greatest frustration with these hearings and the standard five-minutes-per-member format they employ is how routinely they fail to do so.) What it all comes down to for Feith is the February 7, 2002 Bush order that allegedly required the "humane treatment" of detainees "consistent" with Geneva, a topic I've written about before... exactly five years ago; see: Jennifer Van Bergen & Charles Gittings, BUSH WAR: MILITARY NECESSITY OR WAR CRIMES?, truthout (2003.07.14) Since then, the memos on which the order was based have been released, in particluar, OLC Memo, APPLICATION OF TREATIES AND LAWS TO DETAINEES (Yoo draft, 2002.01.09); for the other memos in the series, see the PEGC History Page starting at 2002 (and just before). Here I want to zero in on the fatal defect.
Guantanamo Bay is subject to an order issued in February 2002:
Presidential Order (memo from Bush to Cheney), HUMANE TREATMENT OF TALIBAN AND AL QAEDA DETAINEES, The White House (2002.02.07).
The key provision ('Geneva Order') states:
"I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."
At the outset, two premises apply to an analysis of that order:
1. It is a fundamental breach of military duty to either issue or obey an unlawful order.
2. It is a fundamental breach of military discipline to act on an order which you do not understand.
The first is clear. The second simply observes that you can't do a thing unless you know what it is you're supposed to do; and if you don't understand an order, you're supposed to ask for a clarification. If you're ordered to attack some particular target, but the identification of it is ambiguous, it might be the case you would make your best guess if you knew the attack was expected in support of further operations which couldn't be delayed or recalled; but in that case, you are acting on the part of the order you do understand in the belief the risk of attacking the wrong target is out-weighed by the risks of not attacking at all; in an alternative, the intent of the attack might be diversionary, leading you to suppose the precise target didn't matter.
So what is the meaning of the Geneva Order?
Clearly, everything at OMC and Gitmo is subject to that order, since it applies to all detainees. "Consistent with Geneva" is clear enough, so the question goes to military necessity, which is a term of art with a precise meaning in military law:
"(DOD, NATO) The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war."
Any trial can potentially inflict inhumane treatment -- the panel might be ordered to find a defendant guilty without regard for the evidence for instance -- and the detention for trial can as well, obviously.
So the difficulty is this: how is military necessity per se applicable to a prisoner who is "hors de combat" (out of action)?
The laws of war forbid attacks on places which are undefended, and equally, all intentional abuse of detainees. It's difficult to see how ANY consideration of military necessity would apply to a detainee, and if that's the case, then the order essentially reduces to "we will obey Geneva unless we violate it".
Which brings a third premise:
3. An order which fails to state a definite object is 'void for vagueness'.
The Geneva Order fails to state any concrete object, while at the same time it presupposes an understanding of what "humane treatment" and "military necessity" mean. It ordered nothing, it was just a fraudulent smokescreen for committing war crimes against prisoners. If Mr. Feith (or Mr. Bush for that matter) want us to believe the order actually meant something, they could prove it easily simply by telling us what it means in plain English. Instead, they've spent six years trying to cover up their crimes and their lies.
* Lieber Code (General Orders No. 100, US War Department, 1863.04.24), arts. 14-16:
"14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.
"15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.
"16. Military necessity does not admit of cruelty -- that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult."
* Hamdan v. Rumsfeld, 548 U.S. 557 (2006), KENNEDY, J., concurring in part, slip opinion at 6-7:
"The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation's armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante, at 65-70; see also 415 F.3d 33, 44 (CADC 2005)(Williams, J., concurring). That provision is Common Article 3 of the four Geneva Conventions of 1949. It prohibits, as relevant here, "[t]he 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." See, e.g., Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949,  6 U.S.T. 3316, 3318, T.I.A.S. No. 3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id., at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821."* * *