1) In Hamdan, the Court held that Common Article 3 of the Geneva Conventions applies -- as a matter of international law-- to the US conflict with al Qaeda.
The Court did *not* decide the question of whether any or all US detainees are entitled to POW status under the 3rd Geneva Convention, or protections under the 4th Geneva Convention on civilians. What the Court held was essentially what human rights and humanitarian law experts have long argued: that Common Article 3 of the Geneva Conventions is an "in the alternative" article, applicable to all conflicts that are not otherwise covered by the Geneva Conventions.
On the one hand, Common Article 3 provides only very "basic" protections-- such as the right not to be tortured or murdered-- and these are only a tiny subset of the full range of protections to which people who qualify as POWs (for instance) are entitled. On the other hand, the relatively minimal protections of Common Article 3 are given to all "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause." What that means is that whether a prisoner was wearing a uniform, bearing arms openly, etc., etc. has nothing whatsoever to do with whether he qualifies for protections under Common Article 3.
2). As Carlos Vazquez noted in his earlier post , the Court also did not decide that the Geneva Conventions give rise to judicially enforceable private rights. However, they did hold that when a US statute incorporates the Geneva Conventions by reference-- as the relevant section of the UCMJ does-- then any applicable articles in the GC are part of US law and enforceable to that extent.
There is nothing novel about such an approach, and readers should note that this also has nothing to do with the current controversy about SCOTUS "reliance" on foreign or international law. Throughout our history our courts have routinely interpreted treaty law and foreign law when our own statutes direct us to do so.
3) Here's how this relates to the War Crimes Act. It too incorporates into US law parts of the Geneva Conventions. Specifically, it defines war crimes as, among other things, any conduct that violates Common Article 3.
So... not to belabor the point, but if federal law makes it a crime to violate Common Article 3 of the Geneva Conventions, and the Supreme Court says that Common Article 3 applies to the US conflict with al Qaeda, then any US national who violates Common Article 3 with regard to his or her treatment of an al Qaeda suspect detained by the US has committed a war crime -- assuming, of course, all the requisite mens rea elements can be proven, etc.
4) Which leaves the final question: what conduct violates common article 3? Well-- for one thing, as the Court just noted in Hamdan, one violation of Common Article 3 is "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
But Common Article 3 also says that the "following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment."
As a matter of both international and US law, there is zero doubt that techniques such as waterboarding, sexual humiliation, placing people in dog collars, forcing them into painful positions for extended periods, mock executions, etc. violate Common Article 3.
Which-- again, sorry to belabor the point, but it seems not to be as obvious to some as it is to me-- means that many of the techniques approved by the Bush administration and used against detainees constitute war crimes, and are prosecutable as such in US courts.
5) Do I think we're about to see Secretary Rumsfeld in the dock? No (see below). Politically, prosecutions (at least during this administration) are somewhere between "not bloody likely" and "absolutely wildly impossible." And as Marty Lederman has argued, there may even be a due process argument against prosecutions for prior mistreatment of detainees, on the grounds that OLC had advised that Common Article 3 did not apply to the conflict with al Qaeda. (I don't think I agree, but everything Marty says is worth serious consideration).
But that's more than enough introductory blather. Here's the column, a shorter version of some of the above.
The Los Angeles Times
Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to prosecution.
June 30, 2006
THE SUPREME Court on Thursday dealt the Bush administration a stinging rebuke, declaring in Hamdan vs. Rumsfeld that military commissions for trying terrorist suspects violate both U.S. military law and the Geneva Convention.
But the real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.
The provisions of the Geneva Convention were intended to protect noncombatants — including prisoners — in times of armed conflict. But as the administration has repeatedly noted, most of these protections apply only to conflicts between states. Because Al Qaeda is not a state, the administration argued that the Geneva Convention didn't apply to the war on terror. These assertions gave the administration's arguments about the legal framework for fighting terrorism a through-the-looking-glass quality. On the one hand, the administration argued that the struggle against terrorism was a war, subject only to the law of war, not U.S. criminal or constitutional law. On the other hand, the administration said the Geneva Convention didn't apply to the war with Al Qaeda, which put the war on terror in an anything-goes legal limbo.
This novel theory served as the administration's legal cover for a wide range of questionable tactics, ranging from the Guantanamo military tribunals to administration efforts to hold even U.S. citizens indefinitely without counsel, charge or trial.
Perhaps most troubling, it allowed the administration to claim that detained terrorism suspects could be subjected to interrogation techniques that constitute torture or cruel, inhuman and degrading treatment under international law, such as "waterboarding," placing prisoners in painful physical positions, sexual humiliation and extreme sleep deprivation.
Under Bush administration logic, these tactics were not illegal under U.S. law because U.S. law was trumped by the law of war, and they weren't illegal under the law of war either, because Geneva Convention prohibitions on torture and cruel treatment were not applicable to the conflict with Al Qaeda.
In 2005, Congress angered the administration by passing Sen. John McCain's amendment explicitly prohibiting the use of cruel, inhuman or degrading treatment of detainees. But Congress did not attach criminal penalties to violations of the amendment, and the administration has repeatedly indicated its intent to ignore it.
The Hamdan decision may change a few minds within the administration. Although the decision's practical effect on the military tribunals is unclear — the administration may be able to gain explicit congressional authorization for the tribunals, or it may be able to modify them to comply with the laws of war — the court's declaration that Common Article 3 applies to the war on terror is of enormous significance. Ultimately, it could pave the way for war crimes prosecutions of those responsible for abusing detainees.
Common Article 3 forbids "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment." The provision's language is sweeping enough to prohibit many of the interrogation techniques approved by the Bush administration. That's why the administration had argued that Common Article 3 did not apply to the war on terror, even though legal experts have long concluded that it was intended to provide minimum rights guarantees for all conflicts not otherwise covered by the Geneva Convention.
But here's where the rubber really hits the road. Under federal criminal law, anyone who "commits a war crime … shall be fined … or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death." And a war crime is defined as "any conduct … which constitutes a violation of Common Article 3 of the international conventions signed at Geneva." In other words, with the Hamdan decision, U.S. officials found to be responsible for subjecting war on terror detainees to torture, cruel treatment or other "outrages upon personal dignity" could face prison or even the death penalty.
Don't expect that to happen anytime soon, of course. For prosecutions to occur, some federal prosecutor would have to issue an indictment. And in the Justice Department of Atty. Gen. Alberto Gonzales — who famously called the Geneva Convention "quaint" — a genuine investigation into administration violations of the War Crimes Act just ain't gonna happen.
But as Yale law professor Jack Balkin concludes, it's starting to look as if the Geneva Convention "is not so quaint after all."