Not-so-Common Article 3

Marty Lederman

Well, as I suggested, the Administration's noises about how, in the wake of Hamdan, it was finally going to comply with Common Article 3 of the Geneva Conventions, are not quite what they were cracked up to be in the eager, early press releases.

Today we discover that "[a] day after saying that terror suspects had a right to protections under the Geneva Conventions, the Bush administration said Wednesday that it wanted Congress to pass legislation that would limit the rights granted to detainees. The earlier statement had been widely interpreted as a retreat, but testimony to Congress by administration lawyers on Wednesday made clear that the picture was more complicated."

Ah, yes. "The picture is more complicated." Here's the "complication": The Administration is asking Congress for statutory authorization for the United States to violate Common Article 3. That's what Lindsey Graham means when he says "that Common Article Three must be 'reined in.'"

Graham's statements are very revealing -- indeed, he reveals current (theoretically classified) CIA methods that are said to be compliant with current law other than Common Article 3!:

"He said it would make death penalty crimes of current interrogation techniques, including keeping detainees awake and forcing them to sit in extremely hot or cold cells — methods he referred to as 'things that are not torture but are aggressive.'"

(NOTE: Senator Graham is slightly mistaken about one thing here: Under the War Crimes Act, violations of Common Article 3 are subject to the death penalty only if the violation causes the victim's death. Occasionally the CIA's use of hypothermia does result in death -- see, for example, this incident -- but not invariably.)

What are these techniques, exactly? Well, here is how one report describes the CIA techniques of "Long Time Standing" and "Cold Cell":

Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

So, apparently, the idea is to enact a statute that would allow such techniques, at least in certain circumstances. But how could Congress do that?

Graham indicated to the New York Times -- as did Administration officials -- that Congress could "limit" Common Article 3 "in a way that resembled the language of the [McCain Amendment]." Of course, as Graham concedes, this really wouldn't so much be "limiting" Common Article Three as gutting it, because, according to Graham himself, the restrictions of Common Article 3 go "well beyond the McCain standard." (The Washington Post reports that the White House and Senator McCain are crafting a bill that would track the McCain Amendment and that "makes some changes to Common Article 3," such as dropping the phrase "outrages upon personal dignity.")

How can that be? After all, the McCain Amendment categorically prohibits all "cruel, inhuman and degrading treatment." Well, as I've tried to explain, Congress has defined those terms under McCain to include only what the Due Process Clause would prohibit if the interrogation were taking place in the United States. That is to say, conduct that "shocks the conscience" -- a standard that the courts have never applied in the context of interrogations intended to elicit inforformation about future terrorist activity. As I feared, the Administration apparently has (if Graham's remarks are accurate) construed the McCain "shocks the conscience" test not to prohibit techniques such as sleep deprivation and "cold cell," i.e. hypothermia. (Whether that's the best understanding of the Due Process standard is open to serious question -- certainly it would not be under Justice Kennedy's concurrence in Chavez v. Martinez, which might have the support of five Justices on today's Court (although Justices Souter and Breyer have not yet tipped their hand). But Justice Thomas's opinion in that same case indicates that it takes a whole lot more to shock his conscience (and Justice Scalia's) than it does to shock Justice Kennedy's.)

But Common Article 3 is not limited to "conscience-shocking" conduct, but instead prohibits all violence against detainees and "outrages upon personal dignity." CA3 therefore almost certainly does prohibit techniques such as cold cell, or prolonged sleep deprivation.

The Graham/McCain/Administration initiative now being hatched thus would authorize the use of techniques that would violate the Geneva Conventions. Congress has the power to do this: Where a statute authorizes something that a treaty prohibits, the statute governs for purposes of domestic law if it was enacted subsequent to the Senate's ratification of the treaty.

But make no mistake: that would place the U.S. in violation of its treaty obligations. Which is no small thing. The Solicitor General argued to the Supreme Court this past Term that treaty obligations "are too fundamental to be easily cast aside." But apparently that principle, which the Govenrment invoked as a justification for not construing a religious-liberty statute in a way that would result in a trivial violation of the Convention on Psychotropic Substances, does not apply to less important treaties, such as the Geneva Conventions.

One more thing: The Administration is pushing for this treaty violation because Common Article 3 allegedly is "too vague": "Congress needs to do something to bring clarity and certainty to Common Article Three," Steven G. Bradbury, an acting assistant attorney general, told the House Armed Services Committee on Wednesday.

But that's not right. There's nothing unusually uncertain about prohibitions on "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." Of course there are ambiguities at the margins. But that doesn't mean that the basic rules of conduct are not clear. After all, these were precisely the standards that were promulgated within the military to govern United States Armed Forces policy, against all enemies (including, e.g., irregular combatants such as the Viet Cong), from 1949 until February 2002. Indeed, Army Field Manual 34-52 provides:

Humane treatment of insurgent captives should extend far beyond compliance with Article 3, if for no other reason than to render them more suceptible to interrogation. The insurgent is trained to expect brutal treatment upon capture. If, contrary to what he has been led to believe, this mistreatment is not forthcoming, he is apt to become psychologically softened for interrogation. Furthermore, brutality by either capturing troops or friendly interrogators will reduce defections and serve as grist for the insurgent's propaganda mill.

Common Article 3 wasn't too "vague" for the 53 years that preceded February 2002. And it's not now. The problem, from the Administration's view, is not that its standards are too vague, but that they're too restrictive.

[UPDATE: The link above is to the 1987 version of Field Manual 34-52. The language in question appeared in Chapter 9, on Low Intensity Conflicts. But a revised Manual 34-52 was promulgated in 1992, and, as far as I can tell, several of the chapters in 34-52 were split off into separate Field Manuals. There's a new 1990 Field Manual devoted to the topic of Low Intensity Conflicts, FM 100-20; I haven't read it, and thus I don't know whether it includes any language about Common Article 3. The new Field Manual 34-52, circa 1992, omits the chapter on Low-Intensity Conflicts altogether. Sorry for any confusion.]
Posted 6:15 AM by Marty Lederman [link]