David Cole explains Why the Court Said No in Hamdan.
I'm starting to catch my breadth after the ruling, and, in response to the hearings today in the Senate Judiciary Committee, penned a piece for Slate Magazine about why we shouldn't rush to legislate some newfangled system to try suspected terrorists. The piece is available here. Look for very interesting hearings in the House and Senate Armed Services Committees over the next days, where the level of knowledge about the existing military justice system is terrific.
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."
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
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."
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.
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?
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 importance of the Supreme Court’s decision Thursday in Hamdan v. Rumsfeld far transcends the immediate subject before the Court – military commissions. Among the most important holdings of the Court was its decision that Common Article 3 of the Geneva Convnetions apply to the conflict against al Qaida. The Bush Adminstration had argued that Common Article 3 was inapplicable to this conflict because the Article by its terms applies only to conflicts “not of an international nature” and the conflict with al Qaida is of an international nature. The Supreme Court rejected that reading of the Article, concluding that the Article uses the term “international” in the sense of “between states.” Because al Qaida is a non-state actor, the conflict between the United States and al Qaida is, according to the Court, “not of an international nature.” The Administration’s reading of Common Article 3 garnered only two votes on the Court – those of Justices Scalia and Thomas – and even they conceded that the majority’s reading of the clause was reasonable. (They argued that the President’s reading was reasonable too and the Court should have deferred to.)
The Court’s holding that Common Article 3 applies to the conflict against al Qaida is of enormous significance for questions not before the Court in Hamdan. For example, the President’s narrow reading of the Article was his basis for concluding that the Article – which requires humane treatment of detainees and bars torture and degrading treatment – has no bearing on the interrogation of members of al Qaida. It was also the basis for the Office of Legal Counsel's conclusion that officials who interrogate using methods inconsistent with Common Article 3 would not risk criminal liability under the War Crimes Act, which subjects U.S. nationals who commit war crimes to criminal penalties and specifies that violations of Common Article 3 are war crimes.
Some commentators have suggested that the Court’s reading of Common Article 3 is of limited significant because the Court did not hold that the Geneva Conventions are judicially enforceable by private parties as an independent source of law, but instead considered the Convention to be relevant to Hamdan’s suit only because Congress had by statute made compliance with the laws of war – and hence the Geneva Conventions – a condition of using military commissions. It is true that the Court reserved the question of the judicial enforceability of the Geneva Conventions in other contexts. But, contrary to the suggestions of some commentators, the Court did not for this reason leave open the question whether the Geneva Conventions are binding on the President. The question whether the Conventions are judicially enforceable is quite separate from the question whether the Conventions are binding. The Administration in Hamdan had argued that the Conventions are not judicially enforceable because the Court had said in an earlier case (Johnson v. Eisentrager) that an earlier Geneva Convention contemplated that diplomatic protests would be the exclusive enforcement mechanism. But even the Eisentrager Court recognized that the lack of judicial enforceability had no bearing on whether the Convention created rights that the military authorities were bound to respect. Nothing in any of the Hamdan opinions suggests that the Geneva Convnetions are not binding on the President. Thus, even if the Conventions are not enforceable by private parties in our courts, the President and his subordinates are bound to comply with them. Thus, there is no question that the opinions of the Office of Legal Counsel embracing an interpretation of the Conventions contrary to the one adopted by the Supreme Court will now have to be revised.
The question of the Convention’s judicial enforceability
will come up in cases in which detainees challenge their treatment as
contravening Common Article 3. Numerous
such cases are pending. Although it is
true that the Court left that question open, it is worth noting that the
majority signaled some skepticism about the Administration’s position on that
point. As noted, the Administration had
relied on the Court’s statement in Eisentrager that the “obvious scheme” of an earlier Geneva Convention was that disputes would be resolved diplomatically. The Court’s skepticism of that argument is
suggested by its observation that this argument was “buried in a footnote” in
Eisentrager. (At the oral argument, when
the Solicitor General mentioned Eisentrager, Justice Stevens immediately noted
that the portion of the relevant discussion was “dictum in a
footnote.”) Additionally, after noting
that it would assume arguendo that the earlier Convention’s contemplation of
diplomatic enforcement mechanisms suggests a preclusion of enforcement
in domestic courts, the majority wrote: “But see Brief
of Amici Curiae Louis Henkin et al.” That brief argued at some length that Eisentrager’s reasoning was
erroneous and, being dicta, should not be followed. (Full disclosure: I was a co-author of this brief.) Specifically, the brief argued that a treaty’s provision fpr
international enforcement mechanisms does not in any way suggest a preclusion
of domestic enforcement; treaties were declared by our Constitution to be the “law of the land” and
hence enforceable in our courts in order to avert or quickly correct violations
and thus head off the international enforcement mechanisms contemplated by the
treaty (or by international law more generally). Thus, although the judicial-enforceability
issue technically remains open, Hamdan indicates that at least five Justices
are appropriately skeptical of the Administration’s position on this issue.
Justice Breyer noted in Hamdan that nothing prevents the President from seeking authority from Congress to establish his military commissions. Much of the commentary on Hamdan emphasizes that the Court's holding on military commissions is alterable by Congress. The Hamdan decision places significant limits on Congress' options, however. To the extent the Court relied on the UCMJ, Congress could of course amend that statute. However, the conflicts the Court found with Common Article 3 present a more signficant obstacle. It is true that, under the last-in-time rule, Congress and the President can legislate in contravention of a treaty obligation. But it is significant that, in a decision on Wednesday, Sanchez-Llamas v.Oregon, the Court relied on Article III of the Constitution and quoted Marbury v. Madison in holding that it is the province and duty of the Supreme Court to interpret treaties. The Court gave that as a reason why the interpretation of another treaty by the International Court of Justice could not be considered binding, but presumably this analysis also makes the Supreme Court the authoritative interpreter of treaties vis-à-vis the President and even Congress. If so, then the Court’s analysis in Sanchez-Llamas rules out a statute that purports to reject the Supreme Court's interpretation of the Geneva Convention and "restore" the President's interpretation, as Professor John Yoo has urged Congress to do. The law-makers could, of course, repeal the Geneva Convention's domestic effect, but, in light of Sanchez-Llamas, they would have to do so by openly rejecting the Geneva Convention. Openly 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. If Congress is powerless to reject the Supreme Court's interpretation of the treaty, and repudiation of the treaty is not conceivable, then any legislative solution would have to comply with the Supreme Court's interpretation of Common Article 3.
Notes by Rebecca Tushnet.
Mark Tushnet: His comments are more pro-administration, though not strongly so. He’s concentrating on legal possibilities rather than political ones. He asks: Does admission of evidence obtained by coercion violate Common Article 3? Exclusion of such evidence obtained by coercion – at least when there is some reason to think the evidence is reliable – is not universal around the world. So we don’t know the impact of Hamdan on admission of coercion-derived evidence.
Katyal: Responding to Tushnet’s point that it’s not good to rely on a case in which Rutledge dissented as long as Stevens is on the Court: Stevens didn’t just clerk for Rutledge; the Yamashita dissent is one of the most powerful dissents Katyal’s ever read.
On war crimes: Yesterday, one enterprising military commission defense attorneys sent a letter to the commission “judges.” It said: dear judges, I’m supposed to file motions today. I request a stay because I don’t want to violate Common Article 3 and participating in the commission might make me liable for war crimes.
Question from the audience: Can Congress repudiate the law of nations? Vázquez: For purposes of domestic US law it can, though it would be a big deal. Both treaties and law of nations would continue to bind us internationally, and we’d have to face the consequences, but our judges would look to the statute. Luban: It would be a very dramatic move for the US to repudiate the Geneva Conventions, because they protect US forces as well as people in US hands. When the Justice Department was writing the torture memos, the JAGs wrote outraged letters to Justice lawyers pointing out that the moral high ground is that which protects US captives during any future war. We shouldn’t poison the chalice, since we may be drinking ourselves someday.
Question: We usually make reservations to human rights treaties; did we do so making the Conventions non-self-executing? Luban: We didn’t with the Geneva Conventions. Vázquez: The administration’s argument was that there was only one enforcement mechanism, international diplomacy: that was the equivalent of a reservation saying the Conventions weren’t self-executing.
Question: Does the decision have implications for jurisdiction/prosecution in the International Criminal Court? Luban: We’re not necessarily within its jurisdiction, depending on whether an adversary is a party to the ICC. If US personnel were investigated by the ICC, the US gets the first bite at the apple – the ICC can’t take the case unless the US is unwilling or unable to investigate itself, and that’s a pretty high hurdle to jump (apple orchard to clear?). The US has been signing bilateral nonsurrender agreements with as many countries as possible, so those countries won’t hand over US people to the ICC. The Protection of Servicemembers Act also authorizes the president to use all means necessary including force to get servicemembers out of the ICC’s hands: the Hague Invasion Act. Vázquez: His initial reaction is that the decision has no particular implications for the ICC, in that the Court’s interpretation of the Conventions is the same as everybody else’s – the ICC would have adopted the same interpretation, as many other countries and the Red Cross have done.
Question: does Hamdan say we can detain people as long as hostilities go on? Katyal: The Court said the case didn’t involve the detention power. Question: But does this affect the determination of enemy status? Katyal: The district court ruled on this, but the Supreme Court didn’t. That’s now pending in the DC Circuit and will probably be resolved in short order. Luban: Had the Court found no jurisdiction, there would have been significant implications for pending lower court cases, but now those cases can go forward.
Question: Would a law saying that, for domestic legal purposes, the al Qaeda conflict shouldn’t be interpreted as being of an “international character” really harm us internationally? Despite the Court’s profile here, people outside the US might not understand that was a de facto repudiation of the Conventions. Vázquez: He thinks that wouldn’t work, because the Court is the final interpreter of treaties under Marbury. Also, that might not make the commissions “regularly constituted” as required by Hamdan. Tushnet: Tushnet agrees that a statute mandating an interpretation of the Conventions wouldn’t in itself overcome the Court’s interpretation given the Marbury argument. The question would be whether such a statute would count as a repudiation of the Geneva Conventions such that it would make domestic law. Repeals by implication aren’t favored, but it’s not loony to think that the Court would take such a statute to repudiate the underlying obligation rather than to assert of independent interpretive authority. Question: But surely Congress can pass clarifications saying a law shouldn’t be construed in such and such a way, effectively reversing an earlier decision. Vázquez: That’s a repeal, and won’t work in the same way for a treaty because a treaty has independent existence.
Question: What effect will the decision have on extraordinary rendition? Luban: Not much effect, since that’s a different treaty. Common Article 3 doesn’t cover sending someone abroad. Arguably that’s prohibited under the Convention Against Torture, but Hamdan doesn’t reach it.
Question: How far could Congress go in jurisdiction-stripping? Tushnet: If all issues that a litigant might want to raise were channeled into an exclusive remedy procedure, there wouldn’t be a problem. If there are restrictions on the issues that can be raised, you have to look in detail to see if they’re sufficiently severe to deny due process. His quick and dirty view: The limits in the DTA are not severe enough to violate due process.
Question: Is the defense of following military orders available in a prosecution under the war crimes law? Tushnet: You’d have to worry about the mental element required for commission of the war crime. If willfulness is required, case law suggests that at least reasonable reliance on advice of counsel provides you with a defense. Certainly the OLC believed that reasonable reliance would provide such a defense because that’s the reason they produced the torture memo – not to authorize torture, but to ensure that CIA agents who might engage in it would have a defense. Luban: the war crimes statute doesn’t have a mens rea specified at all. It’s a felony to commit a war crime. The statute is a cipher on mens rea. The usual doctrine for defense of superior orders is that you may disobey a dubious legal order but you’re assuming the risk that it’s legal and may be courtmartialed. If it flies the black flag of illegality, you must defy it. This may change from one period to the next. It may be that while the memos are flying there’s no certainty about waterboarding, but at this point any CIA operative who waterboarded in the wake of Hamdan is doing something manifestly illegal.
Notes by Rebecca Tushnet.
David Luban discussed the implications of Hamdan for interrogation policy and torture debate, and what it means to talk about Common Article 3. The Geneva Conventions are treaties on how people who are out of combat should be treated: the sick, wounded, or captured; prisoners of war; civilian captives. They have different sets of rights, but Article 3 is common to all of them. There are split-level protection: Standard, old-paradigm war of one state against another offers a large array of protections for captured prisoners. If it’s not state against state (not of “international character,” according to the Court), Article 3 gives a basic minimum set of rights even for Al Qaeda captives. They’re protected from sentences and executions without judgment by a regularly constituted court with guarantees recognized as indispendable protections by civilized people.
Other articles protect captives from murder, mutilation, cruel treatment, torture, and outrages upon personal dignity (including humiliating and degrading treatment). So all those things apply to Al Qaeda captives too, after Hamdan. The federal war crimes statute criminalizes violations of Common Article 3.
One implication: It ups the stakes dramatically for participants in the military commissions. If they proceed and are not properly constituted, that’s a federal felony.
Second, interrogators are bound by Common Article 3. The McCain Amendment had no penalty for cruel, inhuman and degrading treatment, but now there is a penalty for such treatment – it’s a war crime and a felony. The war crimes statute covers both members of the armed forces and civilians who are U.S. nationals, like CIA interrogators. Perhaps this will be a deterrent of rough interrogation, if interrogators feel that a different administration might look on their acts differently. There is an internal debate in the Army at present: will Common Article 3 standards be built into the new Army field manual on interrogation? Hamdan will strengthen the case for inclusion.
Does this end the debate on cruel, inhuman and degrading treatment? No, it just displaces it. What are the standards for humiliating and degrading treatment? The most likely administration line: those standards aren’t really defined in US law. The torture convention also says we should undertake to prevent such treatment; the Senate ratification included an understanding that what we meant was defined by 5th and 8th Amendment standards: what shocks the conscience or is cruel and unusual. An idea floating around the blogosphere: If there’s a legitimate governmental purpose like national security, then the treatment can’t shock the conscience, and thus doesn’t violate Common Article 3. Ultimately, then, Hamdan won’t end the debate but will shift it to whether conduct that would normally shock the conscience no longer delivers the same shock when done in the name of national security.