David Cole explains Why the Court Said No in Hamdan.
David Cole explains Why the Court Said No in Hamdan.
for today's post Hamdan hearing is available here.
Posted by Neal Katyal in Constitutional Law, Current Affairs, Geneva Conventions | Permalink | Comments (4) | TrackBack (0)
One last Hamdan panel link: the transcript (pdf) of the discussion.
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.
Posted by Neal Katyal in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (1) | TrackBack (0)
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?
Posted by Martin Lederman in Geneva Conventions | Permalink | Comments (24) | TrackBack (2)
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.
Continue reading "War Crimes Act and Hamdan (Rosa Brooks)" »
Posted by Rosa Brooks in Criminal Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (4) | TrackBack (0)
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.
Posted by Carlos Vázquez in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (2) | TrackBack (1)
Now available in video or audio at the Law School's site, here.
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: 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.
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.
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