Adding two and two

If what was done to the prisoners at Abu Ghraib wasn’t torture, then on the Administration’s theory we have no treaty obligation not to do the same to the prisoners at Guantanamo.

When Donald Rumsfeld quibbled over whether what had gone on at Abu Ghraib constituted “torture” or just “abuse,” I more or less shrugged. I expect Orwellian language from anyone working for George W. Bush.

But then I read the colloquy between Justice Ginsburg and Deputy SG Clemens. Justice Ginsburg wants to know whether the unlimited power claimed by the Administration to hold “enemy combatants” would extend to torture, and Clemens replies that we have treaty obligations forbidding torture.

That seems reasonably persuasive, though there’s reason to doubt how much good it would do in the absence of any way for the prisoner to challenge his treatment. But now consider that the Secretary of Defense doesn’t consider what was done to the Abu Ghraib prisoners “torture.”

Rumsfeld has conceded that what was done at Abu Ghraib was beyond the bounds, given that the Abu Ghraib prisoners were entitled to the protections of the Geneva Conventions. But he has denied that that the prisoners at Guantanamo, as “unlawful combatants,” are entitled to those protections.

So, if I understand him, our military could, without violating any applicable treaty, do to the prisoners at Guantanamo what was done to the prisoners at Abu Ghraib.

Could that possibly be the actual position of this Administration? Yes, I suppose it could. Presumably, as Mickey Kaus suggests, they’d be careful not to take pictures.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com