Of all the strategic blunders the Bush administration has made in waging the Global War on Terror, most damaging to the reputation and values of the United States has been its treatment of enemy combatants. Press reports and debasing photographs from Abu Ghraib prison, along with allegations of maltreatment at Guantanamo and still secret CIA detention sites, have inflamed Arab and Muslim attitudes against the United States.
That treatment has included military tribunals, indefinite confinement, denial of access to the legal system, unexplained deaths of upwards of 80 prisoners in U.S. custody (according to Colonel Lawrence Wilkerson, chief of staff to Colin Powell when he was secretary of state) and, most importantly, interrogation techniques that are or border on torture. Public outrage not seen since the revelation of the 1968 My Lai massacre has rightly been generated. As further stories on prisoner abuse emerge, the administration could find itself in the midst of a firestorm as intense as charges it manipulated pre-war intelligence.
What can be done to reverse these abuses and prevent reoccurrences? History can help. In the harsh captivity of the Korean War, many American prisoners were broken by their North Korean jailers. After the war, the Code of Conduct for American Fighting Men was Grafted to help future service members deal with the POW experience. We now need a code for the treatment of enemy combatants that applies to the armed forces and all other agencies of government involved in these matters.
But before any code can be written, we first need to understand that the treatment of enemy combatants has no simple solution. In an age of mass destruction weapons, the dilemma of permitting or banning extreme interrogation measures in exigent circumstances cannot be easily resolved. Suppose, for example, a U.S. military unit captures an enemy combatant that intelligence believes has information on a pending attack that could kill hundreds or even tens of thousands. What is the responsibility of that unit to pry that information loose by any means necessary in order to protect the greater good? Tough question, no simple answer.
As Senator John McCain, a Vietnam POW, and many others tell us, torture rarely works. The victim will say whatever he needs to say to stop the pain. And if torture is permissible against terrorists, why not use the same tactics on those suspected of committing other heinous crimes, whether child molesters or drug lords? More than a few Americans, certainly many crime victims, would not be unsympathetic. Yet such actions would shred the constitutional guarantees against cruel and unusual punishment.
What about the ultimate disposition of enemy combatants? In detention centers, whether at Gitmo or at secret locales, no doubt there are truly dangerous captives who would strike again if set free. How do we deal with them?
second, in drafting this new code, the process must be entirely transparent. That is not what the administration did in determining its policies. Conferring in secret, the administration concluded that because terrorists operate outside legal norms and target innocent civilians, any standing or protection under the laws of war and, indeed, under the U.S. Constitution, was forfeit. Alleged terrorists were classified as enemy combatants, who are not covered by the Geneva Conventions.
Administration policy authorized military tribunals to determine guilt or innocence. It also sanctioned indefinite confinement and aggressive interrogation techniques. The administration did not consider those techniques torture, which is prohibited by U.S. law. Americans will judge whether "water boarding," which simulates drowning, and other harsh methods are in keeping with our values.
In creating a code for treatment of enemy combatants, four principles are crucial. First, there must be explicit statements on how to treat captives. second, federal judges must approve those statements. Third, Congress must monitor and conduct oversight of this treatment. Fourth, this code must apply throughout the government.
These are difficult times. In 1968, lieutenant William Galley and the men of his infamous First Platoon were issued a wallet card called "The treatment of the enemy." That was a joke. We cannot afford any more jokes. A real Code of Conduct is desperately needed.
Mr. Ullman writes a monthly column for Proceedings. As a Swift Boat skipper during the Vietnam War, he participated in many operations around My Lai in 1966 and 1967.