Hamdan Panel: David Luban

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 5^th and 8^th 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.