an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jack is of, course, correct that the most immediately important aspect of Friday's Hamdan decision is the court's holding that Congress has authorized (at least certain types of) military commissions. In addition, Julian Ku, over at Opinio Juris, correctly flags, as very significant, the court's holding that the 1949 Geneva Conventions are not judicially enforceable in federal court—even on a habeas petition alleging that the petitioner is being held "in custody in violation of . . . treaties of the United States," as provided in 28 U.S.C. § 2241(c)(3). (For an interesting argument about why such a holding might be wrong, see this casenote by Stephen Vladeck.)
But perhaps the most important of the Hamdan court's numerous holdings was its conclusion (see pages 15-16) that Common Article 3 of the Geneva Conventions does not apply to the conflict with Al Qaeda. Article 3—which is "common" to each of the Geneva Conventions—applies to an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." The President concluded that the conflict with Al Qaeda is not covered by Common Article 3. The Hamdan court defers to the President's judgment, reasoning that the conflict with Al Qaeda is not limited to Afghanistan, but extends to "other regions, including this country," as well. The court, in other words, construes the phrase "not of an international character" to refer to a geographical condition. This is the only holding of the Hamdan court that prompted a dissent—Judge Williams concludes, by contrast, that the word "international" means "between nations," and that because Al Qaeda is not a nation, Common Article 3 applies to our conflict with that organization.
This debate about the scope of Common Article 3 has obvious immediate importance to the debates and litigation concerning military commissions, because that article prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
But it has even greater long-term significance, as well—particularly as to the question of the United States's treatment of suspected Al Qaeda detainees during interrogations, because Common Article 3 also provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." As I've discussed recently, the Schmidt Report that the military issued this week concludes that the United States has employed and authorized interrogation techniques that concededly are "abusive" and "degrading"—that is, to say, techniques that would plainly violate Common Article 3. And yet the Commander of SOUTHCOM, General Craddock, was able to testify before the Senate Armed Services on Wednesday that such abusive and degrading treatment "did not result in any violation of a U.S. law or policy."
How can it possibly be the case, one might ask, that admittedly abusive and degrading treatment does not violate any U.S. law or policy? Well, as I've endeavored to explain in a series of posts here, the Administration has very systematically concluded that each of the numerous legal norms that one might think would apply to such treatment do not, in fact, constrain the interrogation of alleged "enemy combatants" at GTMO and elsewhere outside the United States.
What about Common Article 3? The Administration's tactic with respect to this baseline norm of conduct has been twofold:
First, the President concluded and decreed that Common Article 3 does not apply by its terms to our conflicts with al Qaeda and the Taliban. It is this conclusion that the divided court of appeals affirmed on Friday.
That legal determination was very significant, and it is very hotly contested by many who study international law (see, for example, pages 35-37 of this recent article by Derek Jinks)—but I don't think it is the most important move the Administration has made in this respect. From all I can tell, the Executive Branch has long been of the view that Common Article 3 is limited to internal conflicts, such as civil wars—i.e., that the phrase "not of international character" describes a geographical limitation. Indeed, it appears that even William Taft, the State Department Legal Advisor who clashed with the Department of Justice on so many issues relating to the Geneva Conventions, agreed with the President (after the President's February 7, 2002 determination, anyway) that Common Article 3 does not apply by its own terms to our conflict with Al Qaeda.
Nevertheless, for more than a half-century preceding February 7, 2002, the United States had agreed that Common Article 3 reflects a norm of customary international law, and it was U.S. policy to abide by that norm, even if the treaty provision does not apply of its own accord.
All that changed on February 7, 2002.
It should come as no surprise that the Administration believes it is not bound by customary international law when the President is acting pursuant to his constitutional authority—that's a conclusion that the Executive branch appears to have adopted long before this Administration, and it may well be correct. What is very new—and very ominous—is the President's determination that the United States will not uniformly apply the standards of Common Article 3 as a matter of policy, thereby deviating from more than a half-century of consistent U.S. practice.
Indeed, this was the single most important disagreement between the State Department and the rest of the Administration with respect to Al Qaeda detainees—namely, whether the U.S. ought to abide by the customary international law norms reflected in Common Article 3, even if it is not legally obligated to do so. State Legal Advisor Taft was strongly of the view that we should do so, just as we have done in every other modern conflict, with respect to many other detainees not legally entitled to POW protections (e.g., the Viet Cong). Taft even went so far as to write a memo, after the President's February 2002 directive, in which he tried valiantly to pretend as if the President had determined that we would consistently abide by Common Article 3—a conclusion that was based on misleading statements to that effect made by Ari Fleischer.
But in truth, the President had directed the Armed Services to treat detainees consistent with the "principles" of Geneva (that's code for Common Article 3) only "to the extent appropriate and consistent with military necessity." This is, of course, an "exception" big enough to drive a truck through—a loophole that Senator McCain described on Wednesday as being "as wide open as anything I have ever heard." And it has led directly to a situation in which military officials can testify with a straight face that forcing leashed detainees to bark like dogs is not prohibited by U.S. law or policy. (Moreover, the loophole is even broader with respect to the CIA, because the President has carefully declined to direct that agency to treat detainees either "humanely" or "consistent with the GPW where appropriate.")
The Hamdan court's holding with respect to Common Article 3, if it survives further review, will confirm the first prong of the Administration's strategy to circumvent Common Article 3—the strictly legal prong. (The real news here is that Judge Williams dissented on this question, thus raising the possibility that the Supreme Court might hold that Common Article 3 does apply as a matter of binding treaty lawÂ?which would be extremely significant, and which would largely undermine the Administration's policy of using abusive and degrading interrogation techniques.)
But there remains the question of policy—and, possibly, of a statutory fix. As I've explained above, for at least 53 years prior to February 2002, the United States apparently abided by the quite modest, baseline humanitarian norms of Common Article 3. At page 380 of its Report, the 9/11 Commission recommended that the United States "engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists," and expressly urged the U.S. to "draw upon Article 3 of the Geneva Conventions on the law of armed conflict," which was "specifically designed for those cases in which the usual laws of war did not apply." Common Article 3's minimum standards, reasoned the 9/11 Commission, "are generally accepted throughout the world as customary international law."
At a pair of Armed Services Committee hearings this week, Senators Graham and McCain (and others) appeared to be alarmed that the Administration had decided to deviate from Common Article 3, to ignore the Uniform Code of Military Justice, and to permit and even "authorize" treatment that the military itself describes as "abusive" and "degrading." Those Senators also expressed the view that the time has come for Congress to use its authorities under Article I, section 8, clauses 10, 11 and 14 of the Constitution—which empower Congress to define and punish Offences against the Law of Nations, to make Rules concerning Captures on Land and Water, and to make Rules for the Government and Regulation of the land and naval Forces—to set statutory rules concerning at least two very important questions: (i) Who may be detained as an "enemy combatant"? and (ii) What are the limits of the techniques that the United States may use to interrogate such detainees?
As to the second question, perhaps the Congress might consider codifying Common Article 3, so that we might in the future avoid the shocking spectacle of U.S. military officials testifying before the U.S. Senate that United States law authorizes—rather than prohibits—tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks, using female interrogators to sexually humiliate him, and pouring water on his head 17 times during interrogation. Posted
by Marty Lederman [link]
Two Comments --
1) Also of interest...
Christopher S. Kelley, RETHINKING PRESIDENTIAL POWER - THE UNITARY EXECUTIVE AND THE GEORGE W. BUSH PRESIDENCY, paper prepared for the 63rd Annual Meeting of the Midwest Political Science Association (April 2005); available *HERE*.
(Dr. Kelley did his PhD disertation on this topic.)
2) I strongly concur with your observations concerning Geneva Common Article 3, and you've zeroed in on an important point here that I've tried to bring out in my amicus efforts IRT the Guantanamo detainees.
"I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."
"military necessity (DOD, NATO) The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war."
But the laws of war absolutely forbid attacks on persons or places who are out of action / undefended -- no such attack could ever be lawful. Hence, the Bush memo is literally saying that we will obey Geneva except when we violate Geneva.
Further, the word necessity has a meaning, both in ordinary usage and in law, and that meaning is NOT "whatever one thinks is a good idea". There is a distinction between prudence and necessity, and the only real necessity here is to remove these outrageous criminals from the offices they have disgraced forthwith and see to it that every last one of them is prosecuted to the full exent of the law for their CRIMES.
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