Top Ten Myths About Hamdan, Geneva, and Interrogations

Marty Lederman

When the Court issued its Hamdan decision last Thursday, I precipitously declared that the Court's ruling that Common Article 3 of the Geneva Conventions applies to the conflict against Al Qaeda was of much greater practical significance than the Court's ultimate holding with respect to military commissions. (See also my post here, identifying other important holdings in Hamdan not limited to the commission context.)  Slowly but surely, defenders of the Administration's policies are beginning to agree, which is why we now see congressmen such as Senators McConnell and Graham signaling that they intend to introduce legislation to supersede Common Article 3. There may well be a pitched battle on this question in Congress soon.

The Court's holding on Common Article 3 (CA3) has led to numerous misunderstandings, distortions and misstatements, some of which I discuss below.

But first, in brief, here's why the Common Article 3 holding of Hamdan is so important:

The provision of Common Article 3 at issue in Hamdan was a portion of subsection 1(d) that prohibits all signatory states from passing sentences or carrying out executions "without previous judgment pronounced by a regularly constituted court." (The Court held that the President's commissions were not "regularly constituted.")

But even more significantly, subsections 1(a) and (c) of Common Article 3 also prohibit the following, "at any time and in any place whatsoever with respect to [persons who are out of combat as a result of detention]":

"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."

These standards establish what CA3 itself specifically refers to as "a minimum" code of conduct that parties are "bound to apply."  And from at least the time of the Geneva accords (1949), if not back to the time of the Civil War, United States policy and practice had been to apply these minimum, fundamental standards to all detainees, whether or not the detainees themselves were party to (or abided by) Geneva or not (including, for instance, the Viet Cong). Thus, for example, and as Justice Stevens notes at page 70 of his opinion, even as late as 2003, the State Department's Legal Advisor wrote that although the U.S. had not signed the first Protocol to the Geneva Conventions, and had "major objections" to parts of that Protocol because it provided too many protections to unlawful combatants, nevertheless the U.S. "does regard the provisions of Article 75" -- which are virtually identical to those in CA3 -- "as an articulation of safeguards to which all persons in the hands of an enemy are entitled."

In fact, however, the Legal Advisor's statement in 2003 had been recently overtaken by events (apparently unbeknownst to him). That well-established U.S. practice of over 50 (if not 150) years was upended on February 2, 2002, when President Bush declared two things:  (i) that the Geneva Conventions as a whole, including CA3, did not apply to the conflict against Al Qaeda; and (ii) that as a matter of U.S. policy, the Armed Forces were 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." And that very large loophole was even larger for the CIA, because the President carefully declined to direct that agency even to treat detainees either "humanely" or "consistent with the GPW where appropriate."

As I tried to explain here, this jettisoning of Common Article 3 in early 2002 was perhaps the most important legal move that the Administraton had to make to be able to engage in highly coercive and/or degrading interrogations. As long as the U.S. applied Common Article 3 as a matter of treaty obligation or policy, it could not engage in waterboarding, hypothermia, or other of the "enhanced interrogation techniques" that have apparently been approved for and administered by the CIA, nor could it engage in the sort of admittedly degrading and humiliating techniques that were used on at least one detainee at GTMO.  (Indeed, "outrages upon personal dignity" appeared to be the primary modus operandi of that particular interrogation.)

The Court's holding in Hamdan that Common Article 3 applies as a matter of treaty obligation to the conflict against Al Qaeda thus should stop at least some of the Administration's interrogation policies in their tracks. In this respect, the holding will de facto require the Administration to finally adopt the recommendation of the 9/11 Commission (see page 380 of its Report) that the United States "engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists," and in so doing "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."  (The decision ought to also settle the debate at the Department of Defense about whether its new field manual should expressly declare that the Armed Forces will abide by Common Article 3 -- an initiative that had been passionately opposed by the Vice President's Office.)

So here's a quick attempt to distinguish myth from fact, in no particular order.  (Nos. 6 and 8-10 are probably the most relevant to the forthcoming congressional debate.):

MYTH NO. 1: Only four Justices joined the holding that Common Article 3 applies to the conflict against Al Qaeda.

David Rivkin, for instance, is reported to have said that it is not clear that a majority of Court believes the Geneva Conventions should bind the U.S. government, and that only four Justices joined the part of the decision that cited the treaty.

FACT: This is flat wrong.

The holding in question -- that as a matter of treaty interpretation CA3 applies to persons detained in the armed conflict with Al Qaeda -- is the specific, unequivocal holding of the Hamdan Court in section VI-D-ii of the majority opinion, joined by five Justices. And for good measure, Justice Kennedy stresses the same point at page 7 of his concurrence (see below).

(Similarly, Cass Sunstein has written that "a plurality of the Court said that Hamdan's proposed trial violated Common Article 3 of the Geneva Conventions," and that "[i]n the view of the Court's plurality, . . . a 'regularly constituted court' does not include special tribunals such as military commissions." But that holding, too, was for the Court -- see section section VI-D-iii, pages 69-70 -- and also was expressly stressed in Justice Kennedy's opinion. The only part of Justice's Stevens's CA3 discussion that Justice Kennedy did not join was the subsection concluding that the right to be present at one's trial is one of the "judicial guarantees which are recognized as indispensable by civilized peoples" -- Kennedy did not take a position on that question.)

MYTH NO. 2: The Court's holding only involved the meaning of CA3 as incorporated in 10 U.S.C. 821, and therefore does not constitute an interpretation of Common Article 3 for other purposes.

This appears to be, for instance, the gist of Stephen Bainbridge's unfounded criticism of Rosa Brooks.  See also Point No. 6 in this post by Glenn Greenwald.

FACT: Wrong again.

This mistake is based on a misreading of something the Court did not decide. The Court expressly declined to issue a ruling (see page 64) on whether violations of Common Article 3 can be challenged in an independent civil cause of action. (That issue was not germane to the case. Notably, however, the Court did suggest that, at least in certain contexts, violations of CA3 could be cognizable in habeas, such as in Hamdan itself; and in footnote 58 the Court hinted that perhaps the Geneva Conventions do, in fact, create independently enforceable rights.)

But the Court did hold as a matter of treaty interpretation that CA3 applies to persons detained in the armed conflict with Al Qaeda. Indeed, that's the specific, unequivocal holding of the Court in section VI-D-ii of the majority opinion. And Justice Kennedy added this emphasis in his concurrence:

"The provision is part of a treaty the United States has ratified and thus accepted as binding law. . . . By Act of Congress, moreover, violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United Statesnationals and military personnel. See 18 U. S. C. § 2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821."

In other words, CA3 is "binding" in and of itself, and as incorporated in the War Crimes Act, and as incorporated in 821.

This means both that the President has a constitutional obligation to faithfully execute Common Article 3 as applied to Al Qaeda (because the treaty is the Supreme Law of the Land per Article VI of the Constitution), and that (as Justice Kennedy indicated) violations of CA3 are prosecutable as war crimes under 18 U.S.C. § 2441. See also this post by Carlos Vazquez.   [UPDATE:  In a subsequent post, Glenn Greenwald clarifies that he agrees:  "[I]t is still the case that the Court held that the military commissions are violations of the Conventions."]

MYTH NO. 3: The holding only applies to military tribunals, not interrogations.

My fellow blogger Lyle Denniston writes: "[T]he author of this post does not believe the Court has decided that all of Common Article 3 applies to terrorist suspects in detention. Both Justices Stevens and Kennedy parse that Article's provisions so closely in their discussions that it is a stretch to suggest, even by implication, that they have embraced the no-torture protections that are not mentioned even in passing. That, then, also, constitutes an unresolved issue."

FACT: Implausible.

The Court's holding in section VI-D-ii of the majority opinion is that the conflict with Al Qaeda is "not of an international character," as that phrase is understood in Common Article 3, and that therefore Common Article 3 is, in Justice Kennedy's words, "binding law" that applies to the conflict against Al Qaeda. This holding necessarily applies to Common Article 3 as a whole, and therefore it implicates subsections 1(a) and 1(c) of CA3; there's no theory of severability on which that interpretation could be limited to subsection 1(d) -- so that parts of CA3 are applicable to this conflict, but others are not.

MYTH NO. 4: The Court's interpretation of Common Article 3 -- that the conflict with Al Qaeda is "not of an international character" -- is obviously wrong.

Andy McCarthy provides a representative reaction:  "[T]he court's entire Common Article 3 rationale is hooey."

FACT: The Court's reading is probably correct, and is certainly plausible.

The Court held that CA3's reference to a conflict "not of an international character" refers not to a geographical limitation (i.e., "taking place only in one country"), but instead to a conflict that is not between nations.

To be sure, the geographical reading of the phrase, adopted by OLC and then by the President, is a plausible interpretation. And one very interesting (and potentially important) question in Hamdan is why the Court did not therefore defer to the President's view, in light of precedents suggesting that the Executive's interpretations of treaties should be given substantial weight in the Court's construction.

But I think the Court's alternative interpretation is the better reading, principally for the reasons explained at pages 35-37 of this article by Derek Jinks. After all, as even Justice Thomas concedes, Common Article 3 does apply to protect nonuniformed insurgents in an internal civil war -- even if those insurgents might be barbaric, and fail to abide by CA3 themselves, and even if the rebels are attempting to overthrow the government. One would think that that sort of internal conflict with indigenous rebels would be the very last situation in which a multilateral treaty would impose the baseline norms of Common Article 3 -- after all, such a wholly internal conflict is the type of conflict of least concern to the outside world, and is typically the sort of conflict in which the affected state's prerogatives should be most respected. There's no obvious reason why, if CA3 applies to such internal conflicts, the state parties to Geneva would not also have intended that it apply where the insurgent group attacks from outside a signatory state. Professor Jinks on the Administration's interpretation:  "[It] would create an inexplicable regulatory gap in the Geneva Conventions. On this reading, the Conventions would cover international armed conflicts proper and wholly internal armed conflicts, but would not cover armed conflicts between a state and a foreign-based (or transnational) armed group or an internal armed conflict that spills over an 1 international border into the territory of another state. There is no principled (or pragmatic) rationale for this regulatory gap."

In any event, the Court's interpretation is certainly a reasonable one. It was the interpretation adopted by Judge Williams in his separate D.C. Circuit panel opinion. It is the view that certain international tribunals have adopted (see page 8 and n.23 of this OLC opinion).  And notably, no Justices of the Supreme Court indicated that the President's alternative interpretation was the better reading of the treaty. (Justice Thomas merely concluded that the Court should defer to the President's reading -- and only one other Justice of the eight who decided the case (Justice Scalia) joined this conclusion. Justice Alito expressly declined to join that part of Justice Thomas's dissent.)


MYTH No. 5: The United States rejected application of Common Article 3 to terrorist groups when it declined in 1987 to enter into Protocol I to the Geneva Conventions.

Senator Graham asserted yesterday that this result is "something Ronald Reagan was against back in the 1980s."

FACT: The record suggests otherwise.

To be sure, one of the many reasons that President Reagan declined to submit Protocol I to the Senate for ratification was that it would have given terrorists and other "irregular fighters" too much protection. "[W]e must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law," wrote the President to the Senate.  But as the previous, explanatory paragraph of Reagan's letter indicates, the problem, from the U.S.'s perspective, was not that such fighters would be afforded the minimal protections of Article 75 of the Protocol (which track those of Common Article 3) -- after all, we were of the view that such protections were prescribed by the laws of war -- but instead that, in President Reagan's words, "another provision [Article 44] would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves."

As the then-Legal Advisor for the State Department, Abraham Sofaer, explained, "Article 44 of Protocol I, which allows irregular fighters to retain combatant and POW rights even though they do not comply with the traditional requirement of distinguishing themselves from the civilian population by carrying their arms openly and wearing some distinctive sign . . . would substantially increase the risks to the civilian population. . . . In addition, the Protocol eliminates one of the basic existing requirements that irregular groups must meet to qualify for combatant and POW status: that the group as such generally conduct its operations in accordance with the laws and customs of war. Instead, Protocol I provides that individual members of such groups must be accorded POW benefits (with very limited exceptions) even if the group as such (e.g., the PLO) displays a callous and systematic disregard for the law."

See also the remarks of Deputy Legal Advisor Michael Matheson, explaining that although the U.S was opposed to the POW protections afforded in Protocol Article 44, it supported the principles of Article 75.  Remarks of Michael J. Matheson, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U. J. Int'l L. & Pol'y 419, 425, 427-428 (1987).

As far as I know, the U.S. never expressed any objection to affording such irregular fighters the minimum protections of Article 75 of the Protocol -- which are for all practical purposes the same as those prescribed in Common Article 3. President Reagan's concern was that terrorists not be afforded the equivalent of heightened POW protections -- something that CA3 does not give them (see below). [Request: It has been suggested to me that, in fact, in 1977 many officials in the U.S. government were of the view that irregular fighters were not, and should not be, provided even the minimum protections of Common Article 3 (and Article 75 of the Protocol). I don't know of evidence to this effect, but would greatly appreciate if any readers could bring it to my attention.]


MYTH NO. 6: Common Article 3's limitations on interrogation are no more onerous than those already imposed by domestic statute.

Richard Samp: "It is hard for me to believe that it will ever be deemed to impose standard stricter than those already imposed under U.S. law." See also David Luban, who suspects that the Administration may try to construe CA3 merely to impose the same requirements as the Due Process Clause.

FACT: Common Article 3 more clearly prohibits a broader range of interrogation techniques than the most restrictive domestic statute, the McCain Amendment.

By its terms, the McCain Amendment only prevents interrogators overseas from doing what the Due Process Clause would prohibit for interrogations here in the United States -- namely, conduct that "shocks the conscience." The Court has recently suggested that the "shocks the conscience" test turns, at least in part, on the reasons for the government's conduct.  City of Sacramento v. Lewis, 523 U.S. at 849. This doesn't mean, of course, that a worthy objective automatically saves an extreme technique from invalidation under the "conscience-shocking" test. At least three, and presumably at least five, of the current Supreme Court Justices are of the view that "[a] constitutional right is traduced the moment torture or its close equivalents are brought to bear." Chavez v. Martinez, 538 U.S. at 789 (Kennedy, J., concurring in part and dissenting in part). It is safe to say, I think, that some of the more extreme reported CIA techniques -- waterboarding and cold cell, say -- would invariably, or almost always, shock the conscience. Therefore, the McCain Amendment might take certain previously approved techniques off the table (which is why the Vice President's office fought so hard to oppose the McCain Amendment). But beyond that, its effect as to particular interrogation techniques short of "close equivalents" to torture is uncertain. Those same Justices have indicated that "severe compulsion" would shock the conscience in the context of a criminal investigation. Id. at 794. But how this would translate to the context of interrogating Al Qaeda suspects for the purpose of trying to secure valuable terrorism-related intelligence is anyone's guess. There is virtually no caselaw applying the "shocks the conscience" test in circumstances such as those at issue here.

There are three significant differences when we move to consider the standards of CA3.

First, those standards are much more restrictive, as the plain terms of CA3 indicate: CA3 proscribes, inter alia, "violence to life and person, and "outrages upon personal dignity" and "humiliating and degrading treatment" -- without qualification. These standards are not -- at least on the face of it -- "contextual"; they don't shift with the reasons for the interrogation, and they appear to prohibit much of what the Pentagon and CIA have been doing (although admittedly there will be ambiguity at the margins of some techniques, e.g., When does sleep deprivation cross the line?)

Second, in contrast to the McCain Amendment and Article 16 of the Convention Against Torture, CA3 is not subject to a congressional or Senate understanding that it is limited to the conduct that would be prohibited by the U.S. Constitution.

Third, the McCain Amendment has no enforcement mechanism, and therefore if OLC were to adopt a very narrow view of what it proscribes (relying, on, e.g., City of Sacramento v. Lewis), the CIA and DOD would probably follow that legal advice. But as Justice Kennedy stressed in his concurrence on Thursday, CA3 violations are punishable as war crimes. See 18 U.S.C. 2441 (defining "war crime" to mean, inter alia, "any conduct . . . which constitutes a violation of common Article 3"). One thus has to imagine CIA and DOD interrogators and counsel will be very wary of going close to the legal line -- as they should be -- and that therefore an implausible DOJ interpretation of CA3 as being limited to Due Process standards is unlikely to be accepted at the operational level. (For similar reasons, Peter Spiro's suggestion that the President might simply issue an interpretation of CA3 that is inconsistent with the Court's -- and declare that he will abide by the Court's interpretation only in the context of commissions, and not interrogations -- seems implausible to me.)


MYTH NO. 7: Because many of the techniques the CIA and DOD have been using for the past four years are now deemed to be war crimes, those who approved and administered such techniques are subject to prosecution under the War Crimes Act.

FACT: I don't think so.

War crimes culpability certainly would be a possibility for extreme techniques continued after last Thursday, when the government was put on notice that it is likely in violation of the criminal law. But in my view (for reasons I don't have time or space here to elaborate), due process would almost certainly prevent prosecution for any conduct undertaken in reliance upon reasonable OLC advice; and before last Thursday, the conclusion that CA3 did not apply to the conflict with Al Qaeda, although perhaps wrong, was certainly reasonable (indeed, it was accepted by the now-Chief Justice of the United States). I know others will disagree with me on this. But I think it's safe to say, at the very least, that neither this Administration nor any future Administration will prosecute U.S. officials under the War Crimes Act for violations CA3 against Al Qaeda that occurred prior to June 29, 2006.

MYTH NO. 8: "[T]he Court, without any grounding in either American law or the Geneva Conventions, has effectively signed a treaty with al Qaeda for the protection of its terrorists." So says the National Review.  This meme has been front and center of many reactions to Hamdan -- that it is preposterous to construe a treaty to provide protections to persons who are not party to the treaty and refuse to abide by its terms.

FACT: Nonsense.

As Carleton Wu pointedly remarks in the comments section below, saying that we've now "effectively signed a treaty with Al Qaeda for protection of terrorists" is like saying that because we've signed the International Convention for the Regulation of Whaling, we've now entered into a treaty with the whales.  There are many modern treaties, promoted by the United States and universally accepted -- think of the Convention Against Torture, for example -- that require signatory states to refrain from acting in certain ways universally, even with respect to persons, entities and states that have not signed, and do comply with, such treaties. Simply put, reciprocity is not a necessary prerequisite of many modern human-rights treaties. And that's largely a U.S. innovation: As noted above, from the Civil War until Febrauary 2002 it was the view of the United States that we are legally and morally obligated to treat our enemies according to a baseline of civilized conduct, whether or not our enemies (e.g., the Confederacy; the Germans and Japanese in World War II; the Viet Cong) do likewise. Contrary to Sen. Graham's assertion that to give Al Qaeda detainees this baseline protection is "breathtaking," there's nothing at all unusual about it:  The Court's decision simply returns us to the standards we applied to our enemies -- including barbarous and lawless enemies -- for many decades prior to February 2002.

Indeed, the whole point of Common Article 3 -- its only application -- is to provide Geneva protections to parties who have not themselves agreed to be bound by the Conventions.  As OLC explained, "Article 3 is a unique provision that governs the conduct of signatories to the Conventions in a parlicular kind of conflict that is not one between High Contracting Parlies to the Conventions. Thus, common article 3 may require the United States, as a High Contracting Party, to follow certain rules even if other parties to the conflict are not parties to the Convention."

That is to say, the now-oft-heard complaint that those who have not signed the treaty should not be protected by it would mean the rejection of Common Article 3 altogther.

MYTH NO. 9:  The Court's holding affords Al Qaeda terrorists the same treaty protections as U.S. soldiers.

A "senior administration official," to whom the Washington Post accorded anonymity for no good reason ("because the issue is still being debated internally"!), previewed the Administration's spin on the question:   "Members of both parties will have to decide whether terrorists who cherish the killing of innocents deserve the same protections as our men and women who wear the uniform."

FACT: At least insofar as this argument refers to Common Article 3, it's wrong.

The Court did not hold -- not even close -- that all of the protections of the Geneva Conventions apply to suspected Al Qaeda detainees, or that they are entitled to all of the protections afforded U.S. POWs. (POWs, for instance, may not be coerced at all in interrogations, and may not be "threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind" for refusing to answer questions beyond name, rank, serial number and date of birth.) The Court held "merely" that the minimum baseline protections of Common Article 3 are binding on the U.S. in the conflict with Al Qaeda. The Court did not suggest that Al Qaeda detainees are entitled to POW status, and did not opine on the procedures that may be required to deprive a detainee of POW status. As OLC explained, "article 3 requires State parties to follow only certain minimum standards of treatment toward prisoners, civilians, or the sick and wounded -- standards that are much less onerous and less detailed than those spelled out in the Conventions as a whole."
 

MYTH NO. 10: Congress can easily enact a statute to overturn the Court's ruling on Common Article 3.

FACT: Well, not quite -- although Congress does have the power to authorize conduct that would violate Common Article 3.

If Congress passes a statute merely declaring that it disagrees with the Court on the interpretation of CA3, the Court's interpretation presumably will continue to be binding, at least as a matter of domestic law as applied by U.S. courts.

Congress, however, can pass a statute authorizing interrogation techniques (and/or other conduct) that Common Article 3 forbids. If it does so, such a later-enacted statute would supersede the authority of Common Article 3, at least for purposes of domestic law (just as a later-enacted statute trumps an earlier one when the two irreconciably conflict).

This is presumably what Senator Graham has in mind when he says that he would like to "rein in" Common Article 3 by "restrict[ing] the application of Common Article III to terrorists."

There are, however, several significant obstacles to such a legislative initiative. Most importantly, if we enact such a statute, it will mean authorizing U.S. officials to act in violation of the Geneva Conventions. Although this fact will not affect the domestic operation of such a statute (at least if Congress's intent is clear), it would be a fairly momentous development internationally for our legislature to intentionally place the U.S. in violation of the Geneva Conventions.  I share the concern of my colleague Carlos Vazquez, who writes that "[o]penly rejecting the Geneva Conventions would of course be a terrible idea, given the protections they provide to our troops. I assume (and hope) that such repudiation is not within the range of plausible options."

Moreover, because the War Crimes Act specifically provides that violations of Common Article 3 are war crimes, Congress would also have to repeal or amend that portion of the War Crimes Act in order to make lawful what Common Article 3 and the War Crimes Act currently forbid.

Finally, Senator Graham and like-minded legislators might find that drafting a statute to authorize violations of Geneva is not as simple as may first appear. Which prohibitions of Common Article 3, exactly, would this new statute authorize the Executive brnach to violate?: Violence to life and person? Cruel treatment? Outrages upon personal dignity, in particular humiliating and degrading treatment? Do we really want the U.S. Code to establish conditions under which federal officers may degrade detainees in their custody?

Comments

[Carleton Wu]

"[T]he Court, without any grounding in either American law or the Geneva Conventions, has effectively signed a treaty with al Qaeda for the protection of its terrorists."

My counter to this particular piece of nonsense is asking whether our signature on the International Convention for the Regulation of Whaling means that we now have a treaty with the whales...

[Pithlord]

On "Myth No. 7", you are probably right that no American tribunal will prosecute for conduct done in reliance on the OLC opinions. But if I were a member of this administration with responsibility for these acts, I wouldn't want to plan any international travel after January 2009.

In relation to Myth No. 10, I seriously think that a law like that could provoke the end of the Western Alliance. There is already plenty of anti-American feeling in other NATO countries, and a Darth Vader statute like this would be seen as the last straw.

[Nom]

The application of the UCMJ to detainees raises an interesting question. The purpose of the Court's ruling in Hamdan seems to indicate that detainees should be subject to the military justice system that our own soldiers, marines, sailors and airmen are subject to. However, US military personnel are validly subjected to "waterboarding, hypothermia, or other of degrading and humiliating techniques that were used on at least one detainee at GTMO." As anyone familiar with military training knows, simulated drownings, marches to exhaustion, hypothermia, sleep deprivation and personal degradation are typical training techniques. See what a Navy SEAL goes through: http://navyseals.com/community/navyseals/training_buds.cfm

"students tying their feet at the ankles and hands behind your backs at the wrist then entering the pool for some bobbing followed by a 50 meter swim.

Another fun filled event during first phase is surf torture. Torture? You bet it is. It all stems from the theory that a frogman must be intimately familiar with the water. During BUD/S training, the student is wet and sandy for most of the six months. Even the classroom sessions often include a trip or two to the surf zone to facilitate an alert posture during the class. Periodically the instructors include a little "cold water conditioning" in the training schedule - hence the term "surf torture". Basically the entire class must wade into the surf zone to their waste line, then sit down with arms linked. Mind you that the water in San Diego never gets above 68 during summer months and 58 during winter.

Soon the insipid cold sucks all of your body's warmth and the whole class shivers in unison as the waves crash over your heads. The plan calls for submersion to the brink of hypothermia, then to pull you out for some calisthenics to warm up - then back in the drink for some more conditioning. The "training session" lasts for about an hour. It's been shown to be a very effective way to teach a prospective SEAL to mentally fend off the effects of hypothermia - which could likely save your life in the future.

Oh yes - almost frog-ot to discuss HELL WEEK! My favorite week of training during BUD/S. It occurs the sixth week of First Phase, after about 30% of the class has already rung out. Hell Week is the real make or break test during first phase - and a defining moment in the lives and careers of most SEALs. Five days and five nights of non-stop training - with a total cumulative sleep time of about 2 hours!"

My question is, is the military somehow forbidden to treat Al Qaeda detainees as they treat their own soldiers? Is it plausible that the US would have agreed to a treaty that required this anomaly, or is such an interpretation "absurd" and to be avoided?

[Nom]

I do not share the concern that our troops will be placed in danger by passing a statute restricting the application of the Geneva Conventions to unlawful combatants. After all, al Qaeda clearly is not following the Conventions now! Since the only way to enforce the conventions is by retaliation (you mistreat our combatants, we mistreat yours), and the chances of US soldiers being captured by Al Qaeda are exceedingly slim (and would be mistreated anyway -beheadings, etc), this is a red herring.

And no signatory to the Conventions can have any beef with such a statute because their soldiers are not unlawful combatants. How would, say, Belgium, retaliate? They hold no US combatants in their custody, so they are incapable of enforcing the Conventions by mistreating US combatants. And I find it preposterous that Belgium would mistreat US combatants in retaliation for mistretament of Al Qaeda, rather than mistreatment of Belgian soldiers.

[Nom]

Pithlord, denizens of the fever swamps may salivate over some nation kidnapping a US offial to try them for "war crimes," but it will never happen. Any nation would know that any US President (Republican or Democrat) would authorize military force in such an event. Why, look at the extent that Israel is willing to go to free a captured corporal of the Israeli Defense Forces. The Israeli PM has indicated that the officials of the Palestinian Authority are legitimate military targets. The US would be no different. Imagine some European Prime Minister thinking of the sniper's 12.7 mm bullet (a Canadian sniper killed a terrorist in Afghanistan from over 1.5 miles away with one of these), a "snatch and grab" by Delta Force, or a Hellfire anti-tank missile from an aerial drone. Weighing the consequences, there will never be a decision to kidnap a former US official to satisfy any ideological urges.

[Jason]

Nom,

At the risk of stating the blindingly obvious, the main difference between what Navy Seals go through in the course of their training and the techniques applied during coercive interrogations would seem to be that what the Seals endure is optional. If one of them was to say, "That's it. This isn't for me. I quit." then that would be the end of it for that person. Not so for someone being interrogated.

[Evelyn Blaine]

I think that Pithlord's comment referred to voluntary foreign travel by ex-members of the administration, not to kidnapping. Anyone who travels to a state, unless he has diplomatic immunity, subjects himself to the jurisdiction of that state's courts; if he has undertaken acts that might plausibly be considered war crimes and the state to which he's travelling asserts universal jurisdiction over such offenses, then he should be aware of the risks he's running. For a European government to prosecute a former American official, out of office and travelling without diplomatic immunity, under such circumstances might raise the ire of some in the US, but it would clearly not be in any way comparable to the kidnapping of Gilad Shalit from Israeli soil by a terrorist organization.

[Nom]

Jason, I must say that Navy SEAL training applies in times of a mandatory draft, so it isn't always voluntary. And, if the Navy has a shortage of SEALs (as they do today), they can most assuredly force Navy sailors to endure the training (even absent a draft). (From personal experience, in the Army, today, if you sign up as a JAG, the Army has the right to switch you in to infantry against your will). Is your position that the military is somehow legally precluded form forcing sailors against their will to endure SEAL training? I can assure you that you are wrong. When you are in the military, you go where you are needed, regardless of what position you volunteered for.

Evelyn, I understoof Pithlord's comment as you interpret it. However, I believe the reaction of any US President would be the same. Witness the "Invade the Hague Act" passed overwhelmingly by Congress and signed into law by President Clinton authorizing military force to free any American held by the Int'l Criminal Court. I have little doubt that if Rumsfeld is vacationing in Nice in 2009 and is apprehended by the authorities for "war crimes", the response would be swift and there will be a lot of disheveled berets.

[Jason]

Nom,

Even in the case of a draft or switching of service types, I still believe that if a person objected strongly to a certain type of "training", then there could be a way around it. For example, what if a person had a certain type of pre-existing heart condition? That alone could even get them out of the draft all together. (In fact, there are people who have gotten out of the draft on the basis of much flimsier excuses.)

And even if there wasn't a way out of some of the "tougher" aspects of training, there are still significant differences. For one, trainees are getting the treatment for, well, training, right? People are watching over them, concerned for their health. If a trainee wasn't going to cut it, someone would put an end to it. There’s a limit. The same just isn't true of someone who is being subjected to a harsh interrogation.

There’s more, but this is just getting silly. I can’t believe you really don’t see the difference. And if you don’t at this point, nothing I (or anyone else) says is going to change your mind.

[S.cotus]

A Navy Seal that didn't want to train to be a Navy Seal, because Hell Week was too hellish, would, ironically, be subject to a court-martial, under the UCMJ. (Likely, the "penalty" would be administrative, even if we were drafting seals, which is unlikely.)

As to whales, our treaties are with other nations. Whether a white (or their next friends) have a private right of action, is a different story/

[Jacob Howley]

Nom,
A nitpicky factual point, but FYI: President Clinton did not sign the American Servicemembers' Protection Act (a/k/a the Hague Invasion Act). Senator Jesse Helms introduced the ASPA as an amendment to the Defense Authorization Act passed in August 2002, during President Bush's term in office. Clinton DID sign the Rome Treaty, indicating our accession to the ICC. President Bush "un-signed" us from that treaty.

[akr]

I'd like to get back to the legal arguments Marty raises.

I'm still not convinced that the Stevens opinion really says that Common Article III is enforceable except through Article 21. Sections VI(D)ii and iii have to be read in conjunction with section VI(D)i. Everything that follows I think assumes that (D)(i)'s reasoning about Article 21 applies.

So, Stevens doesn't have to engage Eisentrager. (Kennedy is less cautious here and certainly does have the true but unnecessary lines about the Geneva Convention being a treaty and therefore the law of the land.)

But the Stevens opinion does hold - not just say, but hold - that Common Article III applies to the people we are holding because conflicts that are not "international" in the context of the Geneva conventions includes not just civil wars, but all conflicts that are other than those between signatory nation states (at least as to persons captured within the territory of a signatory, i.e., Afghanistan), and that it therefore includes what the Administration likes to call enemy combatants (not acknowledging the necessity of determining whether a particular individual is an enemy combatant, or just a bystander sold to us for bounty by Afghan warlords.)

My reading is that it is only because Stevens has to address the definition of what is not an "international" conflict within the meaning of the Geneva Conventions that he actually has to conclude that Article III is applicable. But that is still just a step on the way to the immediate task: the law of war includes this, therefore Article 21 governs, therefore the standards are enforceable and I don’t have to worry about Eisentrager.

So in my view the opinion only indirectly holds that Common Article III applies (but does not address the point of enforceability except as to standards of military justice by way of Article 21's reference to the law of war).

I like Walter Dellinger's view of the opinions as most importantly a defense of the rule of law and the fundamental principles of separation of powers. The important holding is not the Geneva Conventions, but the rejection of “I can do anything I want if I say it’s national security – if not by way of the Constitution, then by way of the AUMF”). I don't expect the outcome to be too impressive for those we now detain - we have too long a road back as a nation still to what I thought our values were. I expect the Congress to come up with a process, based on courts martial but with more deference to keeping improperly classified material away from defense attorneys, that I probably won't find adequate, but that I don't think the Court would find unconstitutional. I’m not sure what I would find unconstitutional.

You might want to look at the rules for abrogating the Geneva Conventions - not only is it a terrible idea in terms of protecting American soldiers and in terms of our standing in the world (including the necessary task of improving our efforts in the war of ideas against al Qaeda and likeminded groups) - but I believe there are time limits on backing out of the Conventions. Something like not during a particular conflict, and even if done in peacetime, not taking effect for a year?

[p.lukasiak]

War crimes culpability certainly would be a possibility for extreme techniques continued after last Thursday, when the government was put on notice that it is likely in violation of the criminal law. But in my view (for reasons I don't have time or space here to elaborate), due process would almost certainly prevent prosecution for any conduct undertaken in reliance upon reasonable OLC advice; and before last Thursday, the conclusion that CA3 did not apply to the conflict with Al Qaeda, although perhaps wrong, was certainly reasonable (indeed, it was accepted by the now-Chief Justice of the United States). I know others will disagree with me on this. But I think it's safe to say, at the very least, that neither this Administration nor any future Administration will prosecute U.S. officials under the War Crimes Act for violations CA3 against Al Qaeda that occurred prior to June 29, 2006.

Did some German judges think that Hitler was well within his legal authority to authorize the atrocities of the Nazi regime during WWII?

I'm sorry, but I don't buy the "Roberts thought the President had the power, therefore war crimes are not prosecutable" argument. As you note elsewhere "the plain terms of CA3 indicate: CA3 proscribes, inter alia, 'violence to life and person, and "outrages upon personal dignity" and "humiliating and degrading treatment' -- without qualification. These standards are not -- at least on the face of it -- 'contextual'; they don't shift with the reasons for the interrogation, and they appear to prohibit much of what the Pentagon and CIA have been doing".

[Marty responds: I don't disagree that *if* Common Article 3 clearly protected suspected Al Qaeda detainees, then some of the reported interrogation techniques would fairly clearly violate Common Article 3. But until last Thursday, there was a serious and reasonable debate about whether Common Article 3 did apply to the conflict against Al Qaeda. I happen to think the Court got it right -- but the President and the Chief Justice thought otherwise. Therefore, I think it was reasonable -- again, *before* last Thursday -- for CIA interrogators to rely on OLC/Presidential advice that CA3 did not apply. And because the prosecuting authority -- not simply their lawyer -- was telling them that CA3 didn't apply, I think due process would prevent prosceution for conduct undertaken in reasonable reliance on that legal judgment.

Such reliance would no longer be reasonable -- which is why I suspect that interrogation practices changed sometime last Thursday afternoon.]

[Anderson]

but I believe there are time limits on backing out of the Conventions. Something like not during a particular conflict, and even if done in peacetime, not taking effect for a year?

Alas, if the Congress is so eager to torture people that we ditch Geneva, I must doubt that that same Congress will care much about complying with the prescribed exit procedures.

[Charles Gittings]

Marty,

"But until last Thursday, there was a serious and reasonable debate about whether Common Article 3 did apply to the conflict against Al Qaeda..."

I actually think you are mistating the facts there Marty: there's more than one question involved, and the administration's arguments have never been reasonable on any of them.

First Q: What conflict or armed occupation are we talking about?

CA2 defines an int'l armed conflict as one between two or more partices to Geneva.

CA2 also covers cases of armed occupation within the territory of the a party to Geneva.

CA3 defines a non-int'l armed conflict as one occuring in the territory of a party that is not covered by CA2.

The administration's arguments here have never been reasonable. They argue that al Qaeda is not a nation yet insist that the war with al qaeda is international in *scope* because they operate all over the world.

That's a fallacious argument where they are trying to have it both ways at once: heads I win tails you loose.

Second Q: Does that conflict fall under CA2 or CA3.

In fact, this one falls under CA2 IMO: it's an armed occupation of every nation in which alleged Qaeda detainees have been captured, international because the US is operating in the territories of other parties.

Unless we admit that it is silly to call this a conflict at all (correct), except that it is a war / occupation in Afghanistan and Iraq (both on-going).

I could go on, but the point is that there are reasonable questions about whether the conflict falls under CA2 or CA3, but there are no reasonable question at all about whether or not al Qaeda detainees are protected by Geneva: they are either proteced by CA3 or they are proteced by CA2 and Geneva IV art. 4.

*

Further, there is no immunity for war crimes here. See IMT arts. 7-8, the Geneva Grave breach provisions stating that no party may absolve themselves from responsibility, and 18 USC 2441.

See also CA1.

Far from constituting a defense, the OLC memos themselves represent offenses p. 18 USC 371 re 18 USC 2441. There has been probable cause for an indictment since 2002.02.07. There's enough evidence now to support a directed verdict of guilt.

[Pithlord]

Nom,

Your comments reveal why I think Canada should give notice that it is leaving the Nuclear Proliferation Treaty, and develop nuclear weapons. We would then be in a pretty good position to deter attacks from lunatics like yourself.

[Bruce Moomaw]

Another relevant point: CA 3 was explicitly written to defend the right to fair treatment and a fair trial of civilians captured and ACCUSED of being collaborators with the enemy. And that is exactly what a landslide majority of the Gitmo inmates are. Surveys by Seton Hall University and the National Journal of the military's own official records on their capture show that an astonishing 86% of them were not captured "on the battlefield" (contrary to Bush's constantly-repeated howler), but turned in by Pakistani or Afghan groups, very often for huge monetary rewards offered by the US, and very often under circumstances in which the actual evidence against them is (to quote Kevin Drum) "laughably weak":
http://www.washingtonmonthly.com/archives/individual/2006_02/008230.php
http://www.washingtonmonthly.com/archives/individual/2006_02/008244.php
http://www.washingtonmonthly.com/archives/individual/2006_06/009109.php

[Andrew Hyman]

Correct me if I'm wrong, but didn't the Court say in Hamdan that the "UCMJ conditions the President's use of military commissions on compliance with ... the American common law of war" including the Geneva Conventions? So, couldn't Congress simply amend the UCMJ to clarify that this condition of the UCMJ does not apply to Al Qaeda? That wouldn't violate the Geneva Conventions, would it? After all, the President would still have power to confer Geneva Convention protections on Al Qaeda.

[Richard Samp]

Marty,
I just read your post and thought it was quite good. But it seems pretty clear to me that there will be no effective enforcement of CA3 in the US Courts unless courts are willing to hold that CA3 "rights" are privately enforceable by individuals. (I see little chance of criminal enforcement through War Crimes Act charges for anyone who acted in a manner that resembled authorized CIA policy, however debatable that policy may be.) So what is your view on that issue: are Geneva rights privately enforceable? That is an issue that the D.C. Circuit obviously will have to address quite soon in connection with the Guantanamo detainees cases. Given the unwillingness of even a single justice in Hamdan to hint that there is a private right of action, and given the relatively clear language of the GCs on this point, it is hard for me to believe that the D.C. Circuit will rule for the detainees. And in the absence of such private enforcement, the significance of Hamdan's CA3 holding is diminished.

[Bruce C Dubey]

Elaine,
You mentioned the kidnapping of an Israeli soldier from Israel. Two points I'd like to make. Isn't this not a kidnapping, but a capture, given that an undeclared or virtual state of war exists between the militant group and Israel? Wouldn't a better example have been the actual kidnapping of a non-combatant, nuclear whistleblower Mordechai Vanunu, by Israel's Mossad in Rome back in 1986? Released from prison after 18 years, 2/3 of that in solitary confinement, the remainder under severe restrictions, he is still denied freedom of speech or association, and disallowed to leave Israel. Amnesty International and other such groups consider his treatment to be in violation of human rights.

[Bruce C Dubey]

Elaine,
It is disengenuous not to mention the full context.

Israel, Lebanon, and Palestine
Tariq Ali, John Berger, Noam Chomsky, Eduardo Galeano, Naomi Klein, Harold Pinter, Arundhati Roy, José Saramago & Howard Zinn
July 19, 2006
The latest chapter of the conflict between Israel and Palestine began when Israeli forces abducted two civilians, a doctor and his brother, from Gaza. An incident scarcely reported anywhere, except in the Turkish press. The following day the Palestinians took an Israeli soldier prisoner - and proposed a negotiated exchange against prisoners taken by the Israelis - there are approximately 10,000 in Israeli jails.
That this "kidnapping" was considered an outrage, whereas the illegal military occupation of the West Bank and the systematic appropriation of its natural resources - most particularly that of water - by the Israeli Defence (!) Forces is considered a regrettable but realistic fact of life, is typical of the double standards repeatedly employed by the West in face of what has befallen the Palestinians, on the land alloted to them by international agreements, during the last seventy years.

[Bruce C Dubey]

Elaine,
I should have caught that the rest of the peice was unknowingly truncated (see below). I would add that, while you may not have had access at the time you posted to the abduction of two Palestinians the previous day, it doesn't excuse a callous disregard for the rest of the context--including numerous previous Israeli abductions of Palestinians with little or no justification--which is widely available.

(cont.)
Today outrage follows outrage; makeshift missiles cross sophisticated ones. The latter usually find their target situated where the disinherited and crowded poor live, waiting for what was once called Justice. Both categories of missile rip bodies apart horribly - who but field commanders can forget this for a moment?
Each provocation and counter-provocation is contested and preached over. But the subsequent arguments, accusations and vows, all serve as a distraction in order to divert world attention from a long-term military, economic and geographic practice whose political aim is nothing less than the liquidation of the Palestinian nation.
This has to be said loud and clear for the practice, only half declared and often covert, is advancing fast these days, and, in our opinion, it must be unceasingly and eternally recognised for what it is and resisted.
http://www.chomsky.info/letters/20060719.htm

[Bruce C Dubey]

Regarding possible war crimes or human rights prosecution of Bush administration officials and others directly involved, I have no legal training in either domestic or international law to make any definitive judgment. That said, however so much as I would like to see those people tried, there seems little likelihood of that happening either here or anywhere else.

The main obstacle outside of this country would be obtaining sufficient evidence, and an extreme reluctance by foreign governments to endanger their relationship with the U.S.

Domestically, a lack of popular and government support to pursue the matter tends to rule out any punishment or censor. I could foresee a slight chance somewhere down the line that rights groups could bring the matter before the judicial branch on behalf of victims, and that the judicial branch would be forced to act under the rule of law.

In either instance, a further encumbrance is that it will be seen as misguided policy that is atypical of U.S. aims and ideals. Not that I agree that excuses it or allows for a free pass, because it doesn't, and holding those responsible accountable for their roles is necessary for moral, justice, and deterrent reasons.

Irrespective of any such occurrence, it is my belief the Bush administration and its inhumane policies ignorantly committed in our name, purportedly for our security, should be held in perpetual disgrace.

[Bruce C Dubey]

Nom,
Jason and others have pointed out many of the fallacies in your interesting, if ridiculously ignorant, argument already.

If I may add and embellish to that. Draft or no, there are obvious reasons why only those willing and capable of subjecting themselves to the rigors of Navy SEAL and other ultra-elite military unit training would be chosen or allowed to do so. Those reasons are not that difficult to fathom if one is not blindly clinging to an ideology. At any rate, it could also be safely assumed that those circumstances necessitating a military draft would result in a plentiful supply of volunteers for such elite forces.

Those undergoing such rigorous training are fully aware of their circumstance, are typically informed of the how's and why's of their training, if not before, then after. They have no illusions: that they are being trained, not being held malevolently against their will in captivity; that their training is to benefit them and their country, not merely to induce pain, stress and terror as retribution or to extract information.

Furthermore, unlike those being tortured, they are cognizant that their is a limit to how much they are forced to endure, and a limit to the period of hardship. Unlike torture victims, there is no expectation given, implicit or explicit, that they would be deliberately murdered arbitrarily or for some failure. Unlike those being tortured, there are typically interspersed periods with some sense of normality. The kind of encouragement given cannot be compared with that given to torture victims. One doesn’t haven’t to have extensive knowledge of the atrocities at Abu Graib and elsewhere to realize that torture frequently constitutes a gross disregard for human health and life, unlike even the most rigorous training exercises, which are carefully calibrated. The trainee and trainer are both acutely aware that the trainee’s health and well-being are of prime importance, that anything else is counterproductive.

The psychological and physical suffering undergone in such military training do not have lasting adverse effect—rather, quite the opposite could be asserted. Conversely, this isn’t true for the victims of torture and inhumane treatment. Moreover, the extent of that suffering cannot and should not be compared. You might as well have compared Navy SEAL’s training to Holocaust victims. Can you now fully comprehend and appreciate how idiotic and inappropriate your posting was?

As an aside, what about the innocents who are often falsely detained and then senselessly tortured that your ludicrous simile ignores?