Balkinization  

Wednesday, August 02, 2006

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.

Comments:

Perhaps Bush thinks that chosing the McCain Amendment over Article 3 will give credence to his signing statement where he declares his powers as Commander in Chief grant him the right to interprete law any way he wants.

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of ... protecting the American people from further terrorist attacks."


Bush could bypass new torture ban

 

Is there not an inherent problem with trying to compose a finite list of specific interrogation techniques that are outlawed?

I would think that the creativity of interrogators could always invent new forms of torture or cruel treatment not anticipated by legislative drafters. Torturers since Torquemada have been gaming their systems that way, haven't they?
 

Some excellent points Marty. Here's a few thoughts I had...

(1) What about the fact that the JAGs admitted to Sen. Graham in an earlier J-committee hearing that we'd already violated CA3?

Obviously, the didn't think any clarification of CA3 was needed to arrive at that conclusion.

(2) What about the President's 2002.02.07 "order" stating:

"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."

George Bush, Humane Treatment of Taliban and al Qaeda Detainees (memo), The White House (2002.02.07).

That raises two serious issues:

a) CA3 is the bare minimum, yet obviously this order presumes that there is some discrete non-vague set of Geneva principles such that military personnel can be ordered to observe them.

b) What is the administration's non-vague definition of "military necessity"? The term happens to have a rather exact meaning, and in fact military necessity simply does not apply to defenseless prisoners.

(3) It should be noted that the applicability of CA3 vs. full Geneva III POWs or Geneva IV Civilians protections is by no means settled: what the court ruled was that CA3 was the *minimum* that would apply, and that minimum was sufficient to make the military commissions illegal without addressing the larger question.

In fact, that district court opinion in found that Hamdan was entitled to POW status absent an art. 5 hearing. The government has since argued that:

a - The CSRT's constitute art. 5 hearings.

b - The detainees are NOT entitled to POW status.

c - The detainees are "enemy combatants" that may be detained indefinitely.

But assuming a & b arguendo, c is patently false:

* POW status under Geneva III is the only lawful authority for indefinite detention without trial.

* Anyone who is properly subject to an art. 5 hearing under Geneva III is automatically protected by Geneva IV as a civilian in the event they are not protected as a POW.

* Anyone who isn't a "lawful combatant" is just a common criminal, and everyone is entitled to due process of law.

The real problem there is that they want to impose criminal sanctions without a fair trial on the basis of suspicions, coerced confessions, and guilt by association - that is what the administration and their apologists are arguing for, and anyone who claims that has anything to do with fighting wars or making us safe is either a liar or an idiot.

(4) I couldn't help noticing a number of remarks made en passant to the effect "now that CA3 is the law..."

WRONG: CA3 and 18 USC 2441 were the law *before* Hamdan.

Am I to understand that criminal statutes are only law AFTER they have survived every last frivolous appeal in a civil case??

What this all makes plain is that the administration has been committing war crimes by policy since 2001. There was and is no need for the McCain amendment, the DTA, or any new laws here at all -- what is needed are indictments to enforce the laws that we already have.

It isn't the Geneva Conventions that are at fault here, it is an administration of CRIMINALS...

And it is long past time for the Congress to quit making lame excuses for them, or aiding and abetting their crimes.

So it seems to me anyway.

Regards,

Charly
 

All that is available so far, excusively are the formal opening statements of committee members and principal witnesses in the hearing before the US Senate Judiciary Committee, not transcripts of proceedings, in this matter, this week. From excerpts of verbal interchanges cited above and in other media, it is clear that last Friday's draft with which we were privileged to work here, has been augmented, and, indeed, remains difficult for the committee to finalize because of conflicts even among members of the president's own party, as well as there being continued objections by the senior military judge experts testifying.

In a parallel forum, August 1 the government filed what is essentially a six-page brief in DCC regarding the Boumediene subset of cases, sounding increasingly like the unitary theory is to blue pencil Geneva conventions reaching back fifty years, and straining to declare that the US Supreme Court in the June 2006 Hamdan decision was cautious to avoid declaring detainees had standing or rights.
 

All that is available so far, excusively are the formal opening statements of committee members and principal witnesses in the hearing before the US Senate Judiciary Committee, not transcripts of proceedings, in this matter, this week. From excerpts of verbal interchanges cited above and in other media, it is clear that last Friday's draft with which we were privileged to work here, has been augmented, and, indeed, remains difficult for the committee to finalize because of conflicts even among members of the president's own party, as well as there being continued objections by the senior military judge experts testifying.

In a parallel forum, August 1 the government filed what is essentially a six-page brief in DCC regarding the Boumediene subset of cases, sounding increasingly like the unitary theory is to blue pencil Geneva conventions reaching back fifty years, and straining to declare that the US Supreme Court in the June 2006 Hamdan decision was cautious to avoid declaring detainees had standing or rights.
 

I think it is critical to remember that this article is first and foremost about operatioanal activities, and that the criminal liability aspect is secondary (although certainly an important component in the compliance continuum). Now that CA3 is being looked to more for the latter
purpose, people are troubled by this "vagueness" and the broad test.

This idea has always been at the heart of US military interpretation of the obligation. As a young intelligence officer, I received only a cursory overview of interrogation tactics and rules (this was 1984). 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. I remember this vividly because it formed the foundation of training conducted for my unit in Panama during the build up for Operation Just Cause.

Although this standard was not at that time characterized in terms of CA 3, when I became a Judge Advocate I realized that the tactics, techniques, and procedures we had been taught at the intel school were totally consistent with the approach reflected in the substance of CA 3 - 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.

Flexibility is important, a fact acknowledged by the Commentary to CA 3. In fact, this is exactly why no precise definition of what is "humane treatment" was offered by the drafters. They understood that any such categorical definition would invite "interpreting out" of the obligation. Nonetheless, the goal of "humanizing" captured opponents motivated the inclusing of the express prohibitions listed in the article, which were regarded as universally accepted to fall within the meaning of humane treatment.

Accordingly, Congress would do well to recall that the express prohibition against degrading and humiliating treatment of individuals who are "hors de combat" was no accident. The people who drafted this seminal law of war article knew full well that the path to brutalization of captives often begins with much more benign steps. Thus, the objective is clear - once captors start THINKING of their detainees as "less than human", the danger of ending up in a much more troubling place is exponentially increased. Accordingly, the Prohibition against degrading and humiliating treatment is in fact a bulwark that was regarded as essential to prevent heading down this slippery slope.

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. Seems inconsistent to me - so how will it ultimately impact the "field."

The big question remains "why is this necessary?" 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." Seems to me we would be better off leaving this alone and worrying about "prosecutorial abuse" of this article only in the unlikely event that happens.
 

Bradbury and the rest's arguments are not so much about uniformed military and CIA interrogators. UCMJ as it stands places a uniformed military in a position where they can be court-martialed for actions that fall below Common Article 3.

The uniformed military affect is that a reduction in the War Crimes Act standard would mean that post-discharge military persons prosecuted under the War Crimes Act would face a lower standard then if they were still in uniform and subject to courtmartial.

This standard would protect high-level generals who would have ordered, acquiesced in such tactics and retired where the military was unwilling to call them back to active duty so that they would be subject to court-martial (though I guess if they are on a pension they still run that risk).

The CIA and the civilian authority in the DOD and other places are the real ones being protected by the Bradbury lower threshold standard.

I wish that someone would point out clearly in the hearings with the civilian authorities the criminal liability over the 2002-2006 period of the high level civilians and military generals and that the effort to reduce the standard is just an effort to CYA for what was done in accordance with previous orders.

Also, I wonder when someone would raise the issue of revisiting some of the court-martials which occurred prior to HAmdan in light of the Hamdan decision to see to what extent the "higher orders" defenses should be reviewed.

Best,
Ben
 

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