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
Battle Royale at the Pentagon: David Addington v. Common Article 3
As I have previously explained, perhaps the single most important turning point in the torture and abuse scandals was the President's determination, on February 7, 2002, that the United States would no longer uniformly abide by the standards prescribed in Common Article 3 of the Geneva Conventions, which provides, inter alia, 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."
First, the President concluded and decreed that Common Article 3 does not apply by its terms -- as a matter of treaty obligation -- to our conflicts with al Qaeda and the Taliban. A divided court of appeals (with John Roberts as the decisive vote) affirmed this determination in the Hamdan case last summer (the appeal of which the Supreme Court is presently considering). As I've noted, that legal determination about the meaning of the Geneva Conventions was very significant, and it is vigorously contested by many; but, be that as it may, the Executive Branch (rightly or wrongly) has long been of the view -- shared by the State Department -- that Common Article 3 is limited to internal conflicts, such as civil wars, and does not cover conflicts such as the war against 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 where the treaty provision does not apply of its own accord.
All that changed on February 7, 2002, when the President 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." State Department Legal Advisor Will Taft strongly argued that this was a serious mistake in judgment, and that we should abide by Common Article 3, just as we have purported to do in every other modern conflict, with respect to many other detainees not legally entitled to POW protections (e.g., the Viet Cong).
And the 9/11 Commission agreed. At page 380 of its Report, the 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." (I should briefly add here that there are at least two serious arguments that the Executive is legally obliged to abide by Common Article 3, even if it is "only" a law of armed conflict, rather than a treaty obligation: (i) that the President's constitutional Commander-in-Chief authority only extends in the first instance to conduct that is consistent with the laws of armed conflict (a topic on which David Golove of NYU is currently writing); and (ii) the notion, suggested in the Court's Hamdi decision, that Congress's authorizations to the President to used all "necessary and appropriate" force against certain enemies (such as Al Qaeda) implicitly limit the President to using only those forms of force that are consistent with the laws of armed conflict, such as Common Article 3. But I do not dwell on those arguments here, because the Administration obviously rejects them and is not acting in accord with any such notions.)
In a very important story in tomorrow's New York Times, Tim Golden and Eric Schmidt reveal that many officials at the Pentagon, stung and shocked by the military's abuse scandals, have made great strides to implement the 9/11 Commission's recommendation, and to re-adopt the standards of Common Article 3 in a major Pentagon directive on interrogations, and in a new Army interrogations "field manual" that was largely completed months ago.
So far, so good. But then . . .
Enter the ubiquitous David Addington, newly appointed Chief of Staff to the Vice President, accompanied by DoD General Counsel Jim Haynes and Pentagon Under-Secretary Stephen Cambone, and fighting tooth and nail to continue to allow the military to deviate from Common Article 3 and from a half-century of military learning and practice:
A central player in the fight over the directive is David S. Addington, who was the vice president's counsel until he was named on Monday to succeed I. Lewis Libby Jr. as Mr. Cheney's chief of staff. According to several officials, Mr. Addington verbally assailed a Pentagon aide who was called to brief him and Mr. Libby on the draft, objecting to its use of language drawn from Article 3 of the Geneva Conventions. "He left bruised and bloody," one Defense Department official said of the Pentagon aide, Matthew C. Waxman, Mr. Rumsfeld's chief adviser on detainee issues. "He tried to champion Article 3, and Addington just ate him for lunch." Despite his vehemence, Mr. Addington did not necessarily win the argument, officials said. They predicted that it would be settled by Mr. Rumsfeld after consultation with other agencies. . . .
A spokesman for the vice president, Stephen E. Schmidt, said Mr. Addington would have no comment on his reported role in the policy debates. A Defense Department spokesman, Bryan Whitman, also would not discuss Mr. Waxman's role except to say it was 'certainly an exaggeration' to characterize him as having been bloodied by Mr. Addington." . . .
Many officials said Mr. Addington, who helped create the legal framework after 9/11, remains a bulwark in support of those policies, deftly blocking or weakening proposed changes. Nonetheless, the internal politics of those issues have begun to shift in Mr. Bush's second term. Several architects of the original policies have left the government. Some other senior officials, who had challenged aspects of the policy with limited success, have gained stronger voices in new posts.
Condoleezza Rice, who occasionally questioned the Pentagon's management of Guantánamo when she was national security adviser, has called more forcefully for a reconsideration of some detention policies as secretary of state, a stance generally backed by her successor at the White House, Stephen J. Hadley, administration officials said. The new deputy defense secretary, Gordon R. England, has also been an influential advocate for reviewing the detention policies within the Pentagon, officials said.
"The results may not be very different, but the discussions have changed," a senior military lawyer said. "And there are more discussions." . . .
Lawyers at the State Department raised the issue repeatedly, officials said. But because the department opposed the president's original decision to put aside the conventions, the efforts of its lawyers were largely dismissed as attempts to revive a question that had already been decided, they added.
Beginning late last year, Defense Department lawyers took up the issue as they revised Directive 23.10, the "DoD Program for Enemy Prisoners of War and Other Detainees." A roughly 12-page draft of the directive, which began circulating in the Pentagon in mid-September, received strong support from lawyers for the armed services, the military vice chiefs and some civilian defense officials, several officials said.
"The uniformed service lawyers are behind the rewrite because it brings the policy into line with Geneva," one senior defense official said. "Their concern was that we were losing our standing with allies as well as the moral high ground with the rest of the world."
Following one of the recommendations of the Sept. 11 commission, the draft, written by officials in Mr. Waxman's office and military lawyers, lifted directly from Article 3 of the Geneva accords in setting out new rules for the treatment of terrorism suspects, three officials who have reviewed the document said. . . .
The draft Pentagon directive adopted the language of Common Article 3 "as a matter of policy rather than law," one defense official said. Even so, the Geneva reference was opposed by two senior Pentagon officials, Stephen A. Cambone, the under secretary of defense for intelligence policy, and, William J. Haynes, the department's general counsel, defense officials said.
Mr. Addington, who has been a close bureaucratic ally of both defense officials, soon called Mr. Waxman to the Old Executive Office Building to brief him and Mr. Libby on the directive. Two defense officials who were told about the meeting said Mr. Addington objected to phrases taken from Article 3 - which proscribes "cruel treatment and torture," and "outrages upon personal dignity, in particular murder of all kinds, mutilation, humiliating and degrading treatment" - as problematically vague. . . . Another official said Mr. Addington and others also argued that Mr. Bush had specifically rejected the Article 3 standard in 2002, setting out a different one when he ordered that military detainees "be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."
Only when the dispute is resolved, defense officials said, would the Pentagon conclude the drafting of the second directive, known as 31.15, on the interrogation of prisoners including terrorism suspects. That document, in turn, would make possible the publication of a roughly 200-page Army manual for interrogations that was virtually completed last spring, officials said.
"If we don't resolve this soon," one defense official said, referring to the overlapping debate over Senator McCain's proposal, "Congress is going to do it for us."
How is it that all discussions of this issue ignore Common Article 2, which clearly states:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
If the Geneva Conventions and their attendant Protocols are inadequate to the task of governing 21st century conflict, then call for their revision.
As they now stand: Al-Qaeda and the insurgency in Iraq routinely violate Convention I, Article 13, Sections 1 and 2; Convention III, Article 4, Section 2; Protocol I, Article 44, Section 3; Convention I, Article 3, and others.
In accordance with Common Article 2, this conduct removes them from the protections afforded by the Conventions, and absolves the United States of observing those protections with regard to them.
The current argument against application of CA 3 recognizes what is explicit in the text of the Conventions.
I suggest that if the Viet Cong had flown airliners into the New York skyline, we would have arrived at this point much sooner.
"I suggest that if the Viet Cong had flown airliners into the New York skyline, we would have arrived at this point much sooner."
Well, the VC *did* conduct a vicious campaign of terrorism in South Vietnam during the early 60s. They didn't use airplanes, but they were fond of such techniques as murdering village chiefs and their families in the middle of the night, then putting the bodies out in public to be found the next morning with placards around their necks saying such nice things as "Thus perish all enemies of the people's power." Oh, yeah, and they killed a lot more civilians than the 3,000 or so who died on 9/11. If we didn't throw aside usual standards of humane treatment for scum would do that, I don't know why we're doing so for those we think may be the accomplices of those who flew airplanes into buildings.
While that's a fine point from an idealiztic perspective, pragmatically, there is a difference between atrocities committed in Southeast Asia and atrocities committed in New York City.
Furthermore, I think you'll find quite a difference between the "official" policies of conduct during the Vietnam conflict and the conduct of soldiers in the field.
The administration's argument against application of Common Article 3 recognizes what is explicit in the text of the Conventions. While that article may reflect "a norm of customary international law," so, too, does Common Article 2. While it may have been "U.S. policy to abide by that norm," the U.S. has also been historically inclined to follow Common Article 2, as illustrated by our soldiers' treatment of Germans as compared to their treatment of Japanese during WWII. The Japanese fared far worse, because their tradtions of combat involved acts of perfidy and savagery that were alien to the European standards war common to the United States and Germany.
The administration has made explicit was has long been practiced by the United States: fight fairly, or our own savagery will know no bounds.
The point of my post is *not* to discuss whether any or all of the detainees in the current hostilities are, or are not, protected by the Geneva Conventions themselves. It is, instead, to explain that the U.S. for fifty years had abided by the *customary* international law norms described in Common Article 3, until February 7, 2002 -- and that there's currently a fight within the Administration about whether to adopt the norms of Common Article 3 as a matter of U.S. policy, at least as far as the armed forces are concerned.
We claim superiority in the conflict against Al-Quaeda, but to what avail if we engage in the same savagery as they.
2. The Pragmatic Dilemma
Torture provides low quality intelligence, and it's use creates a climate where atrocities on both sides can only escalate.
Why is it no christian ever steps into this debate with the obvious new testament quotes. I would suggest that our national response to 9/11 is still trapped in a pre-rational lust for revenge; rather than a rational hunt for least damage scenarios.