Monday, August 14, 2006

The CIA Cruelty Authorization Act of 2006

Marty Lederman

There have been several reports in recent days about drafts of the Bush Administration’s proposed amendments to the War Crimes Act. Now, Slate has published a version of those amendments that reportedly was "sent to Congress" last week. I'm informed that this proposal was, at most, shared with a few Republicans on the Hill, and that it is not the final version. Assuming, however, that this amendment is fairly close to what we will eventually see from the Administration, it is, indeed, a very big deal—but not quite for the reasons that have thus far been stressed in most accounts.

Currently, the federal War Crimes Act provides for criminal sanctions (up to life imprisonment, or even death in extreme cases) for all violations of Common Article 3 of the Geneva Conventions. Until the Supreme Court's decision in June in Hamdan v. Rumsfeld, this provision of the War Crimes Act was, for all practical purposes, inapposite to the conflict with Al Qaeda, because the President had determined that Common Article 3 categorically did not apply to that conflict. As we have explained several times in this space, however, the most important practical aspect of the Hamdan decision was the Court's holding that Common Article 3 does apply to the armed conflict with Al Qaeda.

Naturally, this created a big problem for the CIA, because several of the “enhanced” interrogation techniques that the Agency is reported to have been using are almost certainly prohibited by Common Article 3—and thus such techniques are now war crimes, punishable by severe sanctions.

Hence, the Administration's proposal to amend the War Crimes Act. The proposal (set out below) would limit the War Crimes Act to certain, identified subclasses of CA3 violations.

Most reports of the Administration's proposal have focused on one or more of three things:

1. Its defenders say that such an amendment is necessary to provide clarification to the Armed Services as to where the legal line is to be drawn in their treatment of detainees.

2. Several observers, including John Sifton in Slate, and others quoted in this Washington Post article, suggest that the Administration proposal is designed to immunize government officials for possible war crimes violations that occurred before the decision in Hamdan. [Clarification: John Sifton's fine, comprehensive essay is not only about backward-looking culpability; he also emphasizes, as I do, the immunizing of cruel treatment going forward.]

3. And most accounts of the proposal have focused on the fact that it would eliminate from the War Crimes Act all CA3 violations based upon "outrages upon personal dignity" and "humiliating and degrading treatment." Defenders of the Administration suggest that "mere" degrading treatment should not be treated as a severe "war crime," and that in any event that standard is too vague and variable (what's degrading to some might not be to others, etc.). Critics, by contrast, complain that eliminating "humiliating and degrading" treatment from the War Crimes Act will give a green light to the sorts of degradation and humiliation we saw at GTMO and at Abu Ghraib.

In my view, all three of these reactions misses the mark in important ways. The real importance of the amendment has little or nothing to do with the military, or with past conduct, and very little to do with "humiliating and degrading treatment." It is, instead, that this amendment is part of an effort to authorize the CIA to continue to use interrogation techniques that violate Common Article 3's prohibition on "cruel treatment and torture" -- including hypothermia, threats of violence to the detainee and his family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly even waterboarding.

I'll explain briefly below why the initial responses are slightly off-the-mark in their emphases. But the important action -- the place everyone should be looking -- is in the first paragraph of the Administration's draft. That paragraph is entitled "Torture, inhuman treatment, or cruel treatment." This presumably is intended to give the impression that Paragraph (1) covers all violations of the latter half of subsection (1)(a) of Common Article 3, which flatly prohibits all "cruel treatment and torture." But paragraph (1) of the Administration draft does not come close to covering all of the cruel treatment and torture that Common Article 3 prohibits. That paragraph instead encompasses only conduct defined as "torture" under the federal torture statute, 18 USC 2340-2340A. Indeed, it incorporates directly the definition of torture from that federal statute.

The Administration has determined that the "enhanced" CIA techniques are not torture under the federal torture law. And, at least as to some of those techniques, they're probably right (although not as to others, such as waterboarding, which is intended to create severe physical suffering and thus is torture, contrary to what OLC apparently has concluded). Accordingly, those techniques -- again, that would be hypothermia, threats of violence to the detainee and his family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly waterboarding -- would not be covered by the new War Crimes Act, even though they almost certainly are prohibited "cruel treatment" (or "torture") under Geneva Common Article 3.

Notice this: The Administration proposal identifies numerous specific categories of conduct that would violate the War Crimes Act. But it's no coincidence that none of those categories covers the CIA techniques -- not even threats. [UPDATE: Thanks to Jamie M. for pointing out that although paragraph 5 of the Administration proposal is entitled "Intentionally causing great suffering or serious injury," the text of that paragraph does not, in fact, prohibit "intentionally causing great suffering" -- again, because if it did, the CIA's techniques, many of which are specifically designed to cause great suffering (the better to elicit information), would be war crimes.]

Eliminating coverage of these techniques under the War Crimes Act would not be sufficient to authorize the CIA to continue using these techniques, because Common Article 3 itself would still prohibit them. That's why the Administration needs another couple of statutory amendments, too: One would adopt the "shock the conscience" standard of the McCain Amendment as the governing standard for all CIA interrogations (a tactic that I discuss here); and the other would cut off all judicial review of questions relating to the Geneva Conventions.

But make no mistake: The biggest part of the puzzle for the CIA is to eliminate the most serious deterrent to the use of these techniques -- possible war-crimes culpability.

Now, as to why the other reactions are not quite on-point:

1. The Proposal is Designed to Give Guidance to Military Personnel.

This is transparent nonsense. As I've previously written, the armed services are subject to standards far more restrictive than those found in Common Article 3 -- under the Uniform Code of Military Justice and the Army Field Manual (which they must apply, as a matter of statutory law). Moreover, they are trained to comply with the even higher standards of the protections for POWs in the Geneva Conventions. Why, then, would they need further legal clarification or modification of Common Article 3 or the War Crimes Act, which are much less restrictive than the standards that otherwise govern the armed forces? Answer: They don't. This amendment has nothing whatsoever to do with the military. It's about the CIA.

2. The Proposal is Designed to Provide Immunity for Past Misconduct.

I don't think so. To the extent officials violated the standards of Common Article 3 with respect to Al Qaeda prior to June 29, 2006 (the date of Hamdan), they could not be prosecuted for such violations of CA3 (as incorporated in the War Crimes Act), even without the Administration's amendment, because the President had determined that CA3 does not apply to the conflict with Al Qaeda, and due process would prevent any prosecutions for conduct undertaken in reasonable reliance on that presidential determination. (Regardless of what one thinks of the merits of the Common Article 3 question, the reliance would be deemed reasonable, since the legal conclusion was adopted by the President and affirmed by four Supreme Court Justices [Correction -- That should be three Justices: Justice Alito did not join that part of Justice Thomas's dissenting opinion.] And even if you disagree with me on that due process question, trust me: No Justice Department, not even in the most anti-Bush Administration imaginable, would ever prosecute someone for violation of a law that the President had determined was inapplicable.)

This is not to say that such persons could not be prosecuted under some other law -- say, for violation of the UCMJ, or the assault or torture statutes, or even other parts of the War Crimes Act. But the Administration's proposal (at least the version we've seen so far) would not affect those other statutes or provide immunity for past violations of them. It would only affect Common Article 3 violations of the War Crimes Act -- and prosecution for those violations would be impossible and inconceivable, anyway.

So, it's not really (or primarily) about "immunity" for past conduct; it is, instead, about immunity for future cruel treatment and torture.

3. The Proposal is Designed to Deal with "Humiliating and Degrading Treatment."

Well, perhaps in small part, it is. But that's really a sideshow. The Administration's preferred focus on humiliating and degrading treatment diverts attention from the real heart of the matter, which will be how they define "cruel treatment and torture," and, in particular, whether the CIA enhanced interrogation techniques are covered.

The Administration and its backers (e.g., Senators Cornyn, Thune, Roberts, etc.) are getting a lot of mileage out of the notion that what is "degrading" to some cultures might not be "degrading" to others, that "dignity" is a fluid and vague concept, and that, at the very least, these standards are inappropriate for imposition of criminal sanctions. Putting underwear on someone's head, or mocking the Koran, might be stupid, and odious, and even illegal -- but it seems odd if not perverse to most folks to call it a "war crime."

I happen to think it would be a mistake to exclude humiliating and degrading treatment from the WCA. But many will disagree with me. What's important is to realize that this dispute about how "degrading" treatment should be handled is not why the Administration is proposing an amendment to the WCA. Their public focus on subsection (1)(c) of CA3 -- the provision dealing with humiliating and degarding treatment -- is a feint to throw everyone off the scent. The real issue is the CIA. And that agency is not so interested in making use of the stupid and offensive techniques that were used on Al-Qahtani at GTMO -- religious degradation, underwear on the head, etc.

What they are interested in are the "enhanced" techniques that they've been authorized to use -- including hypothermia, threats of violence to the detainee's family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly even waterboarding. With respect to these techniques, the issue isn't the ban on humiliation or degradation -- it's that they are "cruel treatment," perhaps even "torture," under subsection (1)(a) of Common Article 3.

I'm fairly confident that when we see the Administration's proposed amendment to the War Crimes Act, it will not cover these enhanced techniques. And therefore the proposal will, in effect, authorize these violations of CA3, which are much easier to understand as war crimes than "mere" humiliation and degradation. There might be debate, and confusion, about humiliation and degradation. But there ought to be a consensus in the Congress and the public that "cruel treatment," as such, and as understood under Common Article 3, is a war crime and should be treated as such.

So that's where the focus should be. Senators should be prepared to offer amendments to the Administration proposal that would specifically cover these techniques under the category of "cruel treatment and torture." If the Administration resists such an amendment, as it is likely to do, the burden will be on the Department of Justice to explain either why hypothermia and threats, etc., are not "cruel treatment" under Geneva Common Article 3, or, alternatively, why the United States Congress should authorize the CIA to engage in cruel treatment that violates our treaty obligations.

In sum, we should stop talking about humiliation and outrage, and start talking about cruelty (and torture) -- and about whether our national legislature should authorize the CIA to engage in such cruelty, notwithstanding the fact that it would violate the Geneva Conventions.

[UPDATE: In the comments below, Prof. Geoffrey Corn has some important thoughts about the ramifications -- including in the military -- of eliminating the prohibition on humiliating and degrading treatment. Prof. Corn's comments confirm why that would be a very significant mistake, even if I continue to think that the principal action is w/r/t "cruel treatment and torture."]

Here's the amendment proposed by the Bush Administration to the War Crimes Act:

Section 2441 of title 18, United States Code, is amended by replacing subsection (c)(3) with the following:

"which constitutes any of the following offenses, when committed in the context of and in association with an armed conflict not of an international character under common Article 3 of the international conventions signed at Geneva 12 August 1949:

1. Torture, inhuman treatment, or cruel treatment. -- Any person who commits, or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control shall be guilty of a violation of this subsection. "Severe mental pain or suffering" has the meaning provided in 18 USC 2340(2).

2. Performing biological experiments. -- Any person who subjects one or more persons to biological experiments without a legitimate medical purpose and in so doing seriously endangers the body or health or such person or persons shall be guilty of a violation of this subsection.

3. Intentionally killing any person taking no active part in the hostilities. -- Any person who intentionally kills, or attempts to kill, one or more persons who were taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

4. Mutilating or maiming any person taking no active part in the hostilities. -- Any person who intentionally injures, or attempts to injure, one or more persons who were taking no active part [in hostilities], including those placed hors de combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

5. Intentionally causing great suffering or serious injury. -- Any person who intentionally causes, or attempts to cause, serious bodily injury to one or more persons who were taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, or intentionally engages in conduct that places such a person at significant risk of serious bodily injury, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. "Serious bodily injury" has the meaning provided in 18 USC 1365(h)(3).

6. Rape -- Any person who forcibly or with coercion or threat of force wrongfully invades, or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object shall be guilty of a violation of this subsection.

7. Sexual assault or abuse. -- Any person who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one of more persons to engage in sexual contact shall be guilty of a violation of this subsection. For purpose of this offense, "sexual contact" has the meaning provided in 18 USC 2246(3).

8. Taking hostages. -- Any person who, having knowingly seized or detained one or more persons in violation of the laws of armed conflict, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be guilty of a violation of this amendment."


Well gee, Marty, I have to respectfully disagree. They not only can be prosecuted, they MUST be prosecuted and CONVICTED for their CRIMES.

This is about exactly what the Supreme Court said it was about: the rule of law -- and a government which will not obey its own laws is no government at all.

What is at stake here is nothing less than the legitimacy of our Republic, and the United States is NOT Nazi Germany.

At least NOT YET, despite the crimes of the Bush adminsitration.

And I don't care if it takes us 20 years or more to bring these gangsters to justice.

A further thought...

Their current efforts to modify the laws, starting with the DTA, are in fact just more evidence of the crimes. They were never concerned with actually obeying the law, but with subverting the laws to criminal purposes.

Isn't this just a simple matter of criminal elements?

The President's various "findings" facilitated and encouraged the crimes. How can that provide a defense?

And how can anyone suppose that those findings were made in good faith?

They were plainly fraudulent, and it's very clear that these people are just propagating sophistry to justify their policies without any regard for what the law actually says.

Indeed: the attmept to produce legislation that would authorize these crimes is itself criminal.

This is not the Soviet Union: the law isn't just a cattle prod for DOJ to use on the people to enforce the will of the Politburo.

Great analysis of the proposed amendments from Marty. Notice that the drafters re-use the trick of a phony title in paragraph five. The title says "intentionally causing great suffering or physical injury," but the text says nothing about prohibiting the intentional infliction of great suffering. The proposed amendments are a disaster for all the reasons Lederman, Sifton, and Gittings have noted. They should be rejected in their entirety.

Jamie Mayerfeld

Out of my league here, and this will be long and droning, but this is my take:

I absolutely agree re: the intended future use of the legislation and it should have the most focus. While I don't have any component of legislative or govt or criminal justice background, I think you dismiss the immunization aspects too lightly. You also seem to negate that the legislation impact on the UCMJ aspects, and I do not have nearly that same certainty.

I also have to say - I don't think it is completely clear that four Justices agreed with respect to Geneva Conventions not applying to detainees (Didn't Roberts, who recused, on the panel below relied primarily on the comity issue?). I think, more narrowly, that there were Justices who thought that on the issue of the tribunals, Congress had divested jurisdiction on pending cases in favor of a different format and appellate process and that there was a willingness to "wait and see" if the tribunals could be claimed to have been, as ACTUALLY conducted, within the parameters of the Conventions and UCMJ, as opposed to determining that the guidelines as proposed were so out of kilter that they would not allow for tribunals that conformed. Thomas did go further and Scalia/Alito joined with him in parts - still all relating to the commission, however, and not treatment, but the heart of each of the three dissents was different and Scalia and Alito focused on particular mechanics of statute and forebearance of decision while waiting for the process to actually unfold, IMO, FWIW.

Still, on immunization I think you miss a fairly important point. Because of the manner in which the US proceeded, without requiring criminal evidentiary basis for actions, there were people who were taken, tortured, etc. who can not be claimed to be "enemy combatants." El-Masri comes to mind in particular. The Chinese Uighar detainees. The two detainees who were being held by the Taliban bc they were anti-Bin Laden, but were scooped up in our net, family members of suspects who were also taken into custody, and possibly even journalists and civilians etc.

It is one thing to claim that the "enemy combatants" labelling created by for the President provides a good faith basis (I disagree, for several reasons, but also sadly agree with your assessment that there still would be no prosecution) to escape application of 2441; it is another thing to say that someone who is not in any conceivable manner an "enemy combatant" somehow jumps category to nonetheless become one, solely because the category is created.

As a result, I do believe that immunization for prior crimes is a significant factor. The decision to dispense with even evidence of the applicablity of the category took us into a pretty reckless territory and the result is war crimes that even the good faith belief in "enemy combatants aren't protected by common Article 3" doesn't impact.

I also think that this will have an effect with respect to the UCMJ. One aspect of Hamdan is that it also shot lots of holes in the Beaver memo's concept that violations of the UCMJ were fine as long as a superior officer authorized them (the presumption being that the uppermost echelons of the Chain would implicitly be involved in that authorization). Hamdan indicates that the CIC does not have an inherent ability to go outside both the UCMJ and the common law of war, which for the US incorporates the GConvs, to create authorization to violate either or both. OTOH, it leaves open the possiblity that Congress may. The changes to the War Crimes act, impacting, as they will, the interpretation fo the GC-s for the US, will thereby impact the interpretation of the US standards under the common law of war and under the UCMJ as it incorporates the standards of the common law of war and the GCs. IMO.

Lastly, though I am sure you are correct that, "No Justice Department, not even in the most anti-Bush Administration imaginable, would ever prosecute someone for violation of a law that the President had determined was inapplicable" I don't agree with you with respect to good faith basis.

Really, what would have been the grounds for any convictions at Nuremberg if everyone could agree that as long as a superior, or the ultimate superior, said it was ok -- it became ok?

Even so, my reaction goes deeper. The Jan 2002 memo prepared by Gonzales for the President, after the STRONG objections of Powell, seems to destroy any claim of good faith basis. The memo is an acknowledgment of the intent to commit war crimes, IMO, and an exploration of "how best to get off if we are caught." That approach to legal reasoning runs contrary to the inherent requirements of a good faith basis.

Gonzales specifically says that a reason for the label is to try to use it as a dodge around War Crimes violations. A strategic argument, not a legal one.

Long quote (probably with typos) from the memo, as to the "pros" of using the label:
Substantially reduces the threat of criminal prosecution under the War Crimes Act (18 U.S.C. 2441)
-The statute, enacted in 1996, prohibits the commission of a “war crime” by or against a U.S. person, including U.S. officials. “War crime” for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof, (such as “outrages against personal dignity”). Some of these provision apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that GPW is not applicable to the Taliban means that Section 2441 would not apply to actions taken with respect to the Taliban.
-Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons.
--First, some of the language of the GPW is undefined (it prohibits, for example “outrages upon personal dignity” and “inhumane treatment”), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
--Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.
--Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to future prosecution.

OK - let's look at those "reasons" 1, 2 & 3.

First -the GPW has some undefined terms. If this were a valid argument, it would apply with respect to every category of anyone we ever engage, including absolutely, unequivocal POWs. It is a non-argument.

Second - it is "difficult to predict" what the US may want to do. Again, how is that an "argument" that the US should not be constrained by law if it decides it "wants" to no have such constraints? Lord of the Flies as legal theory? That would be the same argument in any conflict of any nature - a war on drugs, on poverty, on bunions - i.e., that you might want to do something later that would be limited by your already existing legal obligations. I've never hear "we might not wanna do that" as a legal theory for not being bound by existing law.

Third - it is "difficult to predict" the "motives" of prosecutors who might bring "unwarranted" charges. (If they are unwarranted that seems conclusive without additional labelling). This is the ultimate in circular arguments -- if we commit a crime, and someone charges us with a crime, it won't be a crime, if you say now that they can't charge us ...

IMO, no fair reading of the 2002 memo allows for any bootstrapping of good faith and to the contrary, it shows very clearly that they knew the actions they were (likely already taking) going to continue to take were squarely within the definition of War Crimes and they were seeking euphemism on which they could craft a strategic, but not legal, defense.

But you're right about DOJ prosecutions I believe. It really is no longer, in many aspects, the United States Department of Justice. It is the law firm for President Bush and it has been diminished beyond recognition as an institution.

Apropos to Charles, I think it underlines what is at stake in '06 and '08 (and beyond ... consider how many years Chile protected their own): namely electing people who would prosecute. Who realize just how far beyond the realm of reasonableness the Bush Administration went.

How they made normal rules of respecting executive judgment moot, since they didn't honor their underlining principle -- some sort of reasonableness when acting.

And Mary is right. Looking at things now, this seems hard to imagine. But, it's possible. If the people we put in power have the will and are pushed there by public demand.

As one of the individuals quoted in teh Washington Post article referenced in the post, I would like to make a few points.

First, I totally agree with the point that this is not primarliy about DOD. DOD has never been overly concerned with the WCA, for the simple reason that the UCMJ covers the offenses established by that law and is the source of law that has and will be used to address abuses of detainees committed by members of the armed forces. What this means to me is that DOD really does not have a "dog in this fight." I think this is unfortunate, because the minimal DOD interest will make it unlikely that anyone in DOD will take a hard stand against this proposed amendment, even if they believe it is unwise or unnecessary.

However, I do not think the impact on DOD should be so quickly dismissed. I believe this amendment will have an indirect impact on DOD in two ways. First, it will limit the scope of liability for anyone whose crime is not discovered until after they are discharged from the service (it is a myth that soldiers can be "recalled" to be prosecuted - only retirees can be "recalled"). One of the purposes of the WCA was to make sure that such former service members (like the infamous Specialist Mudlow, who admitted his complicity in the Mi Lai killings on 60 minutes but was untouchable because he had already been discharged) do not avoid criminal responsibility for their misconduct simply because of discharge.

Second, and more problematic from my perspective, is the indirect influence this amendment might have on both the interpretation of the maltreatment provisions of the UCMJ, and the interpretation of CA 3 itself. Like CA 3, the "cruelty and maltreatment" article of the UCMJ is itself somewhat vague, and prosecutorial discretion is a major component in the application of this statutory prohibition. In the future, commanders and the lawyers who advise them might look to the restrictive language of the WCA amendment to conclude that the cruelty and maltreatment provision should also be more restrictively
applied when the underlying misconduct is allegedly inconsistent with CA 3. The amendment, if passed, will be viewed as a fairly clear statement of legislative intent on the scope of CA 3 criminal liability.

Beyond the impact on future criminal sanction for cruelty and maltreatment of prisoners or detainees, there is another significant negative consequence of this proposed amendment - more confusion. Uncertainty about "what law applies" and "what the law means" has already been asserted as a factor contributing to detainee abuse by the armed forces. Altering the criminal statute intended to implement U.S. obligtions under CA 3 may very will result in future confusion as to the significance of the prohibition against humiliating and degrading treatment. This confustion is dangerous, because it dilutes the underlying purpose of CA 3, which, it should be remembered, is fundamentally regulatory.

What should not be lost in all of this is that the "humiliating or degrading" treatment prohibition is intended to implement the broader humane treatment obligation established by CA 3. The purpoted motivation for this amendment excluding such treatment from the scope of criminal liability is that this concept of humane treatment is dangerously vague. However the International Committee of the Red Cross Commentary indicates that this term was left DELIBERATELY vague because efforts to define it would invariably lead to wrongdoers identifying "exceptions", a concern that seems somewhat prescient in the current context.
Congress will hopefully realize that the humane treatment obligation is really not as vague a concept as critics allege. As the drafters of CA 3 understood, it was simply a requirement to treat individuals no longer "in the fight" as human beings. The object of CA3 as NOT to protect people only from "severe" physical or mental suffering - it was to protect them from being treated as less than human because of their previous connection to an armed conflict.

The draftes of CA 3, having just lived through the most horrific war in the history of mankind, knew full well this was no easy task. Asking a warrior to start treating a captive as a "victim of war" moments after he was trying to kill you is a tall order. They also knew that this was even more challenging in the realm of non-international armed conflicts, where stakes were often regarded as even more dire (as was illustrated by the Spanish Civil War of 1936-1939, where an approximately 250,000 of the 500,000 individuals killed were estimated to have been civilians or detainees). Of course, infliction of such severe suffering is the most pernicious form of violation. However, the drafters of this seminal law of war article knew full well that the path to such "severe" infliction of suffering often begins with much more "benign" steps. Thus, the objective was clear - once captors start THINKING of their detainees as "less than human", the danger of ending up in a much more dangerous place is exponentially increased.

As a junior intelligence officer in the early 1980's, I received only a cursory overview of interrogation tactics and rules. But, I vividly remember the basic "treatment" guideline: If an enemy were about to do to YOUR subordinate what you are about to do to the prisoner, would you consider it wrong? If so, it probably violates the law. This, I believe, is totally consistent with the CA 3 approach - if you project your subordinates (who military leaders have an intense "protect" instinct over) into the situation, you should end up treating the prisoner as a human being - which is the essence of humane treatment.

Accordingly, the express inclusion of a prohibition against degrading and humiliating treatment and outrages upon personal diginity were intentional bulwarks regarded as essential to prevent heading down this slippery slope. Any move that suggests otherwise creates a risk of undermining the fundamental operation of the humane treatment mandate.

I think this is a REAL danger of this initiative. We have
already seen the consequences of such inconsistent messages on the
treatment of detainees. Now we have DOD emphasizing the applicability
of CA3 to the force, with Congress contemplating essentially modifying
the meaning of that article for purpose of criminal liability under the WCA. I thnk it is a mistake to dismiss the potential impact this incongruity will have in "the field."

The big question remains: why is this necessary? Any dangers related to "vagueness" of the CA 3 mandate can be addressed through the discretionary application of the WCA by prosecutors. CA3 was intended to be flexible, but as noted above also intended to apply a simple rule to prevent the slide into brutality - "do unto others as you would have done to YOUR subordinates." I doubt our military leaders would be happy with a "sever mental or physical suffering" qualifier on the enemy obligation to our forces. I doubt even more that many of them would intuitively identify that point as the "line of non-compliance"
with the humane treatment mandate of the law of war.

I ultimately end up agreeing that the main concern here is not DOD, but I do not agree that this will have minimal impact on DOD.
Just as we seem to be emerging from the era of "fundamental principle" tinkering, it seems to me the process is starting all over again.

"President had determined that CA3 does not apply to the conflict with Al Qaeda, and due process would prevent any prosecutions for conduct undertaken in reasonable reliance on that presidential determination. (Regardless of what one thinks of the merits of the Common Article 3 question, the reliance would be deemed reasonable, since the legal conclusion was adopted by the President and affirmed by four Supreme Court Justices [Correction -- That should be three Justices: Justice Alito did not join that part of Justice Thomas's dissenting opinion.] And even if you disagree with me on that due process question, trust me: No Justice Department, not even in the most anti-Bush Administration imaginable, would ever prosecute someone for violation of a law that the President had determined was inapplicable.)"

I think the post does go a bit too quickly over the issue of the Presidential determination. One aspect of the Presidential determination is the type of analysis done (Gonzalez memo) that basically says "do this and you immunize people from War Crimes liability" to get the determination. I would like to call this the "wink wink" determination. Such a determination might possibly not be seen as faithful execution of the laws and not be given as much weight as is suggested.

As to the prosecutorial discretion, that is the more global issue no matter what the War Crimes Act says - we do not prosecute high level civilian authority.

On the UCMJ, Geoffrey is right. However, I would go farther and add that my concern would be with the reciprocity consequences of that relaxing of the UCMJ approaches on the treatment of American detainees by our enemies.


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