September 12, 2006
The Honorable John Warner, Chairman
The Honorable Carl Levin, Ranking Member
Senate Armed Services Committee
United States Senate
Washington, DC 20510
Dear Chairman Warner and Senator Levin:
As retired military leaders of the U.S. Armed Forces and former officials of the Department of Defense, we write to express our profound concern about a key provision of S. 3861, the Military Commissions Act of 2006, introduced last week at the behest of the President. We believe that the language that would redefine Common Article 3 of the Geneva Conventions as equivalent to the standards contained in the Detainee Treatment Act violates the core principles of the Geneva Conventions and poses a grave threat to American service-members, now and in future wars.
We supported your efforts last year to clarify that all detainees in U.S. custody must be treated humanely. That was particularly important, because the Administration determined that it was not bound by the basic humane treatment standards contained in Geneva Common Article 3. Now that the Supreme Court has made clear that treatment of al Qaeda prisoners is governed by the Geneva Convention standards, the Administration is seeking to redefine Common Article 3, so as to downgrade those standards. We urge you to reject this effort.
Common Article 3 of the Geneva Conventions provides the minimum standards for humane treatment and fair justice that apply to anyone captured in armed conflict. These standards were specifically designed to ensure that those who fall outside the other, more extensive, protections of the Conventions are treated in accordance with the values of civilized nations. The framers of the Conventions, including the American representatives, in particular wanted to ensure that Common Article 3 would apply in situations where a state party to the treaty, like the United States, fights an adversary that is not a party, including irregular forces like al Qaeda. The United States military has abided by the basic requirements of Common Article 3 in every conflict since the Conventions were adopted. In each case, we applied the Geneva Conventions -- including, at a minimum, Common Article 3 -- even to enemies that systematically violated the Conventions themselves.
We have abided by this standard in our own conduct for a simple reason: the same standard serves to protect American servicemen and women when they engage in conflicts covered by Common Article 3. Preserving the integrity of this standard has become increasingly important in recent years when our adversaries often are not nation-states. Congress acted in 1997 to further this goal by criminalizing violations of Common Article 3 in the War Crimes Act, enabling us to hold accountable those who abuse our captured personnel, no matter the nature of the armed conflict.
If any agency of the U.S. government is excused from compliance with these standards, or if we seek to redefine what Common Article 3 requires, we should not imagine that our enemies will take notice of the technical distinctions when they hold U.S. prisoners captive. If degradation, humiliation, physical and mental brutalization of prisoners is decriminalized or considered permissible under a restrictive interpretation of Common Article 3, we will forfeit all credible objections should such barbaric practices be inflicted upon American prisoners.
This is not just a theoretical concern. We have people deployed right now in theaters where Common Article 3 is the only source of legal protection should they be captured. If we allow that standard to be eroded, we put their safety at greater risk.
Last week, the Department of Defense issued a Directive reaffirming that the military will uphold the requirements of Common Article 3 with respect to all prisoners in its custody. We welcome this new policy. Our servicemen and women have operated for too long with unclear and unlawful guidance on detainee treatment, and some have been left to take the blame when things went wrong. The guidance is now clear.
But that clarity will be short-lived if the approach taken by Administration’s bill prevails. In contrast to the Pentagon’s new rules on detainee treatment, the bill would limit our definition of Common Article 3's terms by introducing a flexible, sliding scale that might allow certain coercive interrogation techniques under some circumstances, while forbidding them under others. This would replace an absolute standard – Common Article 3 -- with a relative one. To do so will only create further confusion.
Moreover, were we to take this step, we would be viewed by the rest of the world as having formally renounced the clear strictures of the Geneva Conventions. Our enemies would be encouraged to interpret the Conventions in their own way as well, placing our troops in jeopardy in future conflicts. And American moral authority in the war would be further damaged.
All of this is unnecessary. As the senior serving Judge Advocates General recently testified, our armed forces have trained to Common Article 3 and can live within its requirements while waging the war on terror effectively.
As the United States has greater exposure militarily than any other nation, we have long emphasized the reciprocal nature of the Geneva Conventions. That is why we believe – and the United States has always asserted -- that a broad interpretation of Common Article 3 is vital to the safety of U.S. personnel. But the Administration’s bill would put us on the opposite side of that argument. We urge you to consider the impact that redefining Common Article 3 would have on Americans who put their lives at risk in defense of our Nation. We believe their interests, and their safety and protection should they become prisoners, should be your highest priority as you address this issue.
With respect,
General John Shalikashvili, USA (Ret.)
General Joseph Hoar, USMC (Ret.)
General Paul J. Kern, USA (Ret.)
General Merrill A. McPeak, USAF (Ret.)
Admiral Stansfield Turner, USN (Ret.)
Lieutenant General Daniel W. Christman, USA (Ret.)
Lieutenant General Paul E. Funk, USA (Ret.)
Lieutenant General Robert G. Gard, Jr., USA (Ret.)
Lieutenant General Jay M. Garner, USA (Ret.)
Vice Admiral Lee F. Gunn, USN (Ret.)
Lieutenant General Claudia J. Kennedy, USA (Ret.)
Lieutenant General Donald L. Kerrick, USA (Ret.)
Vice Admiral Albert H. Konetzni Jr., USN (Ret.)
Lieutenant General Charles Otstott, USA (Ret.)
Vice Admiral Jack Shanahan, USN (Ret.)
Lieutenant General Harry E. Soyster, USA (Ret.)
Lieutenant General Paul K. Van Riper, USMC (Ret.)
Major General John Batiste, USA (Ret.)
Major General Eugene Fox, USA (Ret.)
Major General John L. Fugh, USA (Ret.)
Rear Admiral Don Guter, USN (Ret.)
Major General Fred E. Haynes, USMC (Ret.)
Rear Admiral John D. Hutson, USN (Ret.)
Major General Melvyn Montano, ANG (Ret.)
Major General Gerald T. Sajer, USA (Ret.)
Major General Michael J. Scotti Jr., USA (Ret.)
Brigadier General David M. Brahms, USMC (Ret.)
Brigadier General James P. Cullen, USA (Ret.)
Brigadier General Evelyn P. Foote, USA (Ret.)
Brigadier General David R. Irvine, USA (Ret.)
Brigadier General John H. Johns, USA (Ret.)
Brigadier General Richard O’Meara, USA (Ret.)
Brigadier General Murray G. Sagsveen, USA (Ret.)
Brigadier General John K. Schmitt, USA (Ret.)
Brigadier General Anthony Verrengia, USAF (Ret.)
Brigadier General Stephen N. Xenakis, USA (Ret.)
Ambassador Pete Peterson, USAF (Ret.)
Colonel Lawrence B. Wilkerson, USA (Ret.)
Honorable William H. Taft IV
Frank Kendall III, Esq.
