Nat Hentoff

While much of the press was consumed with the tumult about the immigration bills, the gladiators campaigning for the presidency and Paris Hilton, little attention has been paid to the May 10 letter from the plainspoken Gen. David Petraeus to "Soldiers, Sailors, Airmen, Marines and Coast Guardsmen" in his Multinational Force in Iraq.

Said Petraeus: "Some might argue that we would be more effective if we sanctioned torture or more expedient methods to obtain information from the enemy. That would be wrong.

"We are, indeed, warriors," he continued. "We train to kill our enemies (but) what sets us apart from our enemies in this fight, however, is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect."

Also largely swept aside in the 24-hour news cycle was a May 17 Washington Post article ("It's Our Cage, Too: Torture Betrays Us and Breeds New Enemies.") The authors were Gen. Charles C. Krulak (former Marine Corps commandant from 1995 to 1999) and Gen. Joseph P. Hoar (commander in chief of U.S. Central Command from 1991 to 1994.)

Criticizing former CIA Director George Tenet for defending in his new book "the secret CIA interrogation and torture techniques," which he oversaw, they cite: "water boarding, sensory deprivation, sleep deprivation and stress positions conduct we used to call war crimes."

These generals then recalled that "Former defense secretary Donald Rumsfeld once wondered aloud whether we were creating more terrorists than we were killing. In counterinsurgency doctrine, this is the right question. Victory in this kind of war comes when the enemy loses legitimacy in the society from which it seeks recruits." Losing legitimacy among such incipient terrorists, the enemy, the generals note, "loses its' recuperative power."

But, contrary to what it takes to conquer this enemy, Krulak and Hoar continue, "the torture methods that Tenet defends (and have been extensively documented in our press and by human rights groups) have nurtured the recuperative power of the enemy (by adding to its recruits). If we forfeit our values by signaling that they are negotiable in situations of grave or imminent danger, we drive those undecideds into the arms of the enemy."

As of this writing, we are still awaiting a presidential executive order with guidelines for CIA interrogators and a legal opinion from the office of Legal Counsel naming and authorizing the lawful techniques and telling us whether they comply with Common Article 3 of the Geneva Conventions to which we are a signatory and that the Supreme Court (Hamdan v. Rumsfeld, 2006) has told the United States it must honor.

That Supreme Court decision, however, was reinterpreted by Congress in its later Military Commissions Act of 2006 in a section stating that "the President has the authority (by himself) to interpret the meaning and application of the Geneva Conventions."

The MCA also requires that this forthcoming executive order shall be authoritative and be published in the Federal Register.

George W. Bush, however, has frequently expressed his conviction that when necessary in this war against terrorists intent on killing us the CIA (and implicitly other branches of our armed services) has the authority to use alternative, coercive interrogation techniques. But those CIA methods have been classified. If the president is required to place his new executive order in the Federal Register, then his CIA orders can't remain secret. Or can they?

According to a March 25 New York Times story, a previous draft of this executive order was rejected by the State Department, which considered it too broad and left the United States open to challenges that it was violating Common Article 3 of the Geneva Conventions.

But troublingly, the same Times article reported that the Justice Department does not believe the use of the phrase "the President SHALL issue" (the Executive Order to be published in the Federal Register), means that he is required to do so.

This is troubling because of the president's strong penchant for issuing "signing statements" that give him power to bypass laws he has just signed. Will George W. Bush unequivocally and publicly include in his executive order his interpretation of the mandate of Common Article 3 "prohibiting at any time and in any place whatsoever cruel treatment and torture, outrages upon personal dignity - in particular humiliating and degrading treatment" of detainees?

I hope that the president asks Gen. Petraeus to look over the final wording of precisely how he will exercise his authority under the Military Commissions Act of 2006 "to interpret the meaning and application of the Geneva Conventions"

Meanwhile, the Washington Post (June 19) reports: "the administration has been unable to agree on what constitutes humiliating and degrading treatment of detainees."

Ask Petraeus.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press, 2004).

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