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Friday, August 06, 2004

Article 134 

An interesting item from Altercation correspondent Robert P. Ewing of Pennsylvania, who suggests that there might have been a couple of historians in the mix at Abu Ghraib:
In the 8/5/04 Washington Post, an article by Josh White reports that a sergeant testifying in the L. England court martial stated that there were reported instances in which the doors of prisoners in Abu Ghraib were posted with the code "Article 134" as a signal that the prisoners within should be concealed from the International Red Cross ("IRC"). The sergeant indicated he did not know the derivation of the Article 134 reference, and the Josh White article does not provide any guidance in that regard.

Not being a Bush Administration confidante (thankfully, for my soul!), I cannot be certain, but I believe that the signal in question is a reference to Article 134 of the so-called Lieber Code, which was prepared by Francis Lieber, and issued as General Orders No. 100 by President Lincoln on April 24, 1863.

The Lieber Code (which can be reviewed in its entirety on a number of Web sites) has no force or effect under United States or international law, and has clearly been surpassed as a matter of the fundamental humanity of its provisions by such modern "codes of war" as the Geneva Convention. The text of the indicated article is as follows:
Article 134. The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army, and upon their failure to give it he may arrest, confine, or detain them.
My belief that Article 134 of the Lieber Code is the source of the Abu Ghraib signal has two foundations: (1) I have been unable to find a provision of any U.S. statute or regulation or international convention or treaty which even gets close to making sense as the source of the reference; and, (2) I have a fairly clear recollection, that at the time the concealment of prisoners from the IRC first came to public attention, Donald Rumsfeld or some Pentagon or White House spokesperson (or both) made comments to the effect that such concealment could be justified if the prisoners had not cooperated in such a way as to assure security. I suppose the indicated comments were a veiled and misleading reference to the fact that the unlucky, ghost prisoners had failed to obtain a satisfactory pledge (no doubt written, so that it could be used to "turn" the prisoners) of the safety and security of U.S. or coalition forces.

No such precondition to IRC access exists in contemporary law. But given the prior "torturing" of the law concerning prisoner treatment which has been engaged in by the Bush Administration (e.g., the Alberto Gonzales and Jay Bybee memos - - torture is OK if the President says so), I would not be surprised if someone "cooked the books" on this issue also.

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