What's to Become of Common Article 3? [UPDATED]

Marty Lederman

In his appearance before the Senate Judiciary Committee this morning, Acting Assistant Attorney General Steven Bradbury has testified to what previous reports had suggested -- namely, that the Administration will propose a statute specifying that the standards of the McCain Amendment should suffice to define the limits of interrogation techniques for U.S. officials. (Attorney General Gonzales's testimony this afternoon before the Senate Armed Services Committee is to like effect.)

It is not the Administration's public position that the McCain standard is more permissive than Common Article 3. To the contrary, Bradbury states that the standards "should be defined clearly by U.S. law, consistent with our international obligations," and that "the U.S. constitutional standard already adopted by Congress in the McCain Amendment [is] a reasonable interpretation of the relevant provisions of Common Article 3."

Presumably, then, in order to make sure it is consistent with Common Article 3, the McCain Amendment should be construed to prohibit all conduct also prohibited by the relevant provisions of Common Article 3.

In particular, the McCain Amendment must be understood to categorically prohibit all "cruel treatment and torture," as those terms are understood under Common Article 3 -- which is quite a bit broader than the meaning of those terms under domestic statutes.

As I've previously noted here and here, there is a good chance that the Administration is not construing the McCain Amendment to categorically prohibit certain (reported) "enhanced" techniques used by the CIA, including Cold Cell (hypothermia), Long Time Standing, stress positions, sleep deprivation, and possibly waterboarding. If that is the Administration's understanding, then the McCain standards would not, in fact, satisfy U.S. obligations under Common Article 3.

If it's not clear what, exactly, the McCain Amendment prohibits, and not certain that it's coterminous with Common Article 3, why should Congress amend the law to rely exclusively on McCain rather than on Common Article 3 itself?

Bradbury's explanation is that "some of the terms in Common Article 3 are inherently vague." This doesn't seem very plausible -- after all, the military has been taught to apply standards even stricter than Common Article 3 for decades. [UPDATE: In his testimony this afternoon, the Attorney General stated that "the United States military has never before been in a conflict in which it applied Common Article 3 as the governing detention standard." In some sense, this is true, because until February 2002, the military had always applied even more restictive standards! (which Gonzales concedes). At this afternoon's Armed Services Committee hearing, Senators McCain, Clinton and Dayton all pressed the Attorney General on this: If the armed services are "trained to" comply even with the higher standards of the Geneva Conventions, why would they need further legal clarification or modification of Common Article 3, which is much less restrictive? (Indeed, prompted by a question from Senator Clinton, Senator McCain instructed the Attorney General that we provided even the Viet Cong with full POW protections.) And Senator Collins asked Gonzales how he can say Common Article 3 is vague if Deputy Secretary England is now certifying that he is confident that DOD is fully in compliance! Gonzales did not have an answer -- not one he could say publicly, anyway. The real answer was finally provided by the candid Lindsey Graham: It's about the CIA, not the military. The CIA is not complying with Geneva, and, at least before Hamdan, also has not been complying with Common Article 3; and the Administration's goal is to permit the CIA to continue using techniques that, on any reasonable reading, violate Common Article 3.]

And no one has complained about its vagueness for the past nine years, although it has applied as a matter of criminal law during that time (via the War Crimes Act) to interrogators all over the world, including our own in traditional conflicts, such as Iraq. Moreover, some of the "war crimes" that the Administration itself has proposed to be statutorily enacted for purposes of military commissions -- such as conspiracy -- are just as vague and as broad and open-ended, as anything in Common Article 3.

But more importantly, even if some provisions of CA3 were vague, the substantive standard of the McCain Amendment -- the "shocks the conscience" test of the due process clause -- is undeniably vaguer, and more uncertain and case-specific. Here's how Vice President Cheney described the McCain standard: "The rule is whether or not it shocks the conscience. . . . Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose that's in the eye of the beholder." [UPDATE: The Attorney General testified that the McCain standard itself is "a little bit subjective."]

Once it's understood that the McCain Amendment is even vaguer and more indeterminate than Common Article 3, it appears that there's really no other reason for the Administration to seek to fall back on McCain other than to circumvent the categorical prohibitions in CA3 section 1(a) on "cruel treatment and torture."

Accordingly, the thing to watch for, as the legislative process moves forward, is some specification -- in the statute itself or in the legislative history -- of what, exactly, the McCain Amendment prohibits.

In this respect, it is noteworthy that Bradbury suggests an amendment to the War Crimes Act that presumably would replace the criminal statute's reference to Common Article 3 with "a definite and clear list of offenses serious enough to be considered 'war crimes,' punishable as violations of Common Article 3 under 18 U.S.C. § 2441."

That is not necessarily a bad idea -- if the list of offenses includes all "cruel treatment" and "torture," as those terms are understood under Common Article 3, i.e., as long as the list of offenses includes those "enhanced" techniques that the CIA has been using.
Posted 9:31 AM by Marty Lederman [link]