The NYT reports:
The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself. . . .
Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.
Obama administration officials — and Mr. Obama himself — have said in the past that they were not ruling out prosecutions in the military commission system. But senior officials have emphasized that they prefer to prosecute terrorism suspects in existing American courts. When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.
But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.
“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”
Should we call these "kindler, gentler military tribunals"?
Related Posts (on one page):
- It's Official: Kinder, Gentler Military Commissions:
- Gitmo Military Commissions Part Deux: The Sequel:
You don't say.
Yes we should because the O'Bama (he certainly speaks like he's bussed the Blarney Stone) administration will conduct them with respect for human dignity and basic human rights and international law which the Bush administration wasn't doing. Admittedly there may be less basic human rights and less adherence to "international law" and less dignity than would have been true under Bush, but the respect will be there and that's what really counts.
The NYT story does not address whether any tweaking of the commission rules would require amending the Military Commissions Act, which passed Congress on close party-line votes just before the 2006 elections. Since then, the makeup of both houses has shifted in two elections.
Any move to reopen the statute in Congress may also provide an opportunity for revisiting another set of controversial provisions in the MCA, which retroactively watered down the War Crimes Act and created barriers to prosecuting persons who committed torture or cruel treatment of captives.
Another problem is that even under the system of military commissions set up by the MCA, if mistreatment of prisoners rose to the level of torture, authorities may refuse to prosecute. (See the findings of Susan Crawford, convening authority, who halted the prosecution of Mohammed al-Qahtani (aka Kahtani) because she found he had been tortured.)
And he wasn't even waterboarded, as three of the CIA black-site prisoners were.
The deplorable treatment of the captives now makes it impossible to successfully prosecute any of them. Any evidence obtained through torture would be "fruit of the poisonous tree" and whatever was derived from it inadmissible too.
Although I believe there are genuine terrorists who ought to be convicted among the suspects held in Guantanamo, I think they should just let them all go. Figure any danger is diminished because they will be monitored, the countries they get returned to will keep track of them, any contacts they had have dissappeared or will shun them out of fear they'd be tracked down too.
I am compelled to comment that this is a ridiculous piece of fantasy. Why not apply this logic to any dangerous criminal, in any criminal justice system? Just release them, there's no risk or harm!
They will be monitored - by whom? How effectively? At what cost? Where/ We can't even find Bin Laden in Afghanistan, let alone monitor anyone there.
Has any released terrorist ever committed another act of terror?
What countries that they get returned to monitor them? Iran? Pakistan?
Their contacts will shun them? Really?
Are you serious? Was this parody?
In addition, and perhaps on a more serious note, your comment on "deplorable conditions" is tough to square. I challenge you to find a prison in any other country that you would prefer to be in other than any U.S. prison, including Guantanamo. The conditions are not at all deplorable. Perhaps you should make reference to a particular aspect of the conditions - the health care, food, cleanliness? Temperature, humidity? Insects, rodents, pests or pestilence? Your comments are straight from the anti-Bush, anti-Republican, Democratic party talking points, and have no basis in reality.
Water-boarding was, and is not now illegal. That Obama says it is torture does not make it so, legally or otherwise; it is a policy decision or assertion on his part. His, and his party's hints and threats that they will prosecute soldiers, government officials and attorneys ex post facto for violations of non-existent laws associated with treatment of enemy combatants in a real-live shooting war is unconscionable.
The bolded text is the key to me. I spent four years as a military lawyer, one in RVN, and was intimately involved with military commissions. I also studied their use by the military of most countries in past wars. The "case law" has not changed much in the 40 years that have passed since I worked in this area of the law.
With that background, I was surprised at the vehement criticism of the conscientious officers that have recently served in those positions, as well as the contentions that they did not afford our enemies with "process" that was"due" them.
In many instances, the individuals who were in GITMO were very fortunate not to have been killed on the battlefield, or shot or hanged on capture because, like Nathan Hale or James J. Andrews, they were not in any recognizable uniform when captured behind enemy lines.
Believe me when I say a military commission affords a fairer process than the drumhead court-martial to which spies and saboteurs are subject on the battlefield.
While that would certainly make sense, the empirical evidence is otherwise. The real bad guys will go back to the battlefield. Not hard to make your way to Yemen or Pakistan and just disappear.
Simple enough to understand, because the left is the sole owner and inventor of "Fairness" (TM), and the right is totally incapable of even understanding the concept, with the hated military and their associated industrial complexes especially bad.
What then becomes important is the level of process required in habeas proceedings to prove that a detainee really belongs to that class of persons who used to be called "enemy combatants." Presumably we can still prove that much, at least, for KSM and other Al Qaeda members.
But it may well be that the worst of the worst cannot be brought to justice punitively under any court system -- military or Article III civilian -- because of their torture or other mistreatment in our hands.
Bush and Cheney really screwed the pooch on this one.
That's a pretty bad idea.
We have solid objective evidence that some of these people are mass murdering terrorists (KSM planning of 9-11 and beheading of Daniel Pearl).
It is BLOODY OBVIOUS that these people need to be, at a minimum, kept locked up until they die. If our system cannot do that, regardless of what was done to them, the it is a suicide compact.
All the whining about torture, gitmo and the show trials should go away now that obama is going to start doing the same. One attack and he'll be calling Bush into the office for advice.
Too bad when administrations change over down the road he'll have to go through the same type investigations.
There is a Federal Torture Statute. Even the most simple-minded should be able to understand that whether something violates a law or not is a legal question, not a policy decision.
No doubt. Criminal prosecutions in federal court would have the most legitimacy and thus be most effective in winning an ideological contest. Just another of the countless Bush f*ck ups that Obama has been left to clean up.
That would be liking calling in Wylie E. Coyote for roadrunner catching advice.
Sometimes, a binary decision must be made whether gathering immediate information about a battle, a planned operation or some other military or security consideration is more important to the interrogators than the guilt or innocence of the subject. Normally when the decision is information, coerced confessions or other statements will be inadmissible but the interrogators don't worry about it because their job is to get the information.
Walk through north Memphis or south Detroit at night and see if you get out alive.
Someone within a mile of your house is probably torturing some one right now.
Nothing we did was torture, it's all in your pea brain mind.
Only the particular form of tribunal was invalidated, Congress and the president are free to try again with more safeguards.
It will be interesting to see if SCOTUS lets them get away with anything less than full art 3 though. The lower courts (especially the DC apeals court) have been game for that.
Also, I'm not sure any of the cases actually test the boundaries of punative tribunals, I believe the cases have all been in terms of detention tribunals.
Whose brain you calling a pea, Mal?
You missed my point (not to mention the ad hominem attack); please let me clarify it.
Water boarding is not specifically outlawed at this time, nor was it back when this all started. USC outlaws torture. There is a debate as to whether waterboarding is torture, and the Bush admin. was advised it was not.
Obama has decided that waterboarding is torture, and he has done so not by passing legislation, his determination is a matter of policy.
So, the anti-Bush folks now say "Bush, et.al. tortured, broke the law, etc."
It is not right, in my view, to declare something torture as a matter of policy, then go back into the past and prosecute people for having broken the law against torture, when back then water boarding was not determined to be torture.
Is that clear now?
I understand what you're saying, but it's not correct. Whether waterboarding "is" torture will ultimately be decided in court.* That makes it a legal issue, not a policy one.
*Many of us think that this has already been decided.
Just because the Bush OLC said waterboarding was not torture does not mean that it was not torture. Likewise, just because Obama calls waterboarding torture doesn't mean that it is torture. Either one can express their opinion about the question just like anyone else, but neither one has the authority to decide the question. Anyone saying Bush et al broke the law because Obama now says waterboarding is torture would be wrong. What Obama thinks about waterboarding is irrelevant to the question of whether waterboarding is torture as defined by the Federal Torture Statute. As a matter of fact, the authority to decide whether something whether something was or was not a violation of the Federal Torture Statute is for judges and juries. Hence, it is a legal question.
Of course, on a legal blog, one would expect an appeal to a court and a declaration that it is only a legal question.
But... turning it over to a court is an action with potentially severe consequences. It will mean, at a minimum, vast legal expenditures for those being prosecuted, even if they are vindicated. It will have major political consequences.
Hence it is a policy decision as to whether to prosecute, as it always is.
The intense push for this is clearly partisan and political, regardless of the merits of the assertion. It is historically revisionists, seeking to persecute those who truly felt they were doing what was in the best interests of the nation, and whose actions were taken with the full approval of Congressional leaders of both parties, and whose actions would have been applauded by most Americans at the time. It is vengeful and is yet one more example of the tendency of Bush haters to put their hatred and need for vengeance ahead of prudence and the interests of the nation.
If we need a better definition of torture, let congress legislate it, in full public view. Taking an arguable definition and turning it into a show trial is nuts.
When AQ gets a couple of nukes during the disintegration of the Pakistan army, will the people here still want to prohibit waterboarding? Will they do this in public, where the families of those incinerated when those bomb blasts happen can find them (I note most opponents are posting using pseudonyms).
Hmmm. From the link above:
Crawford's background includes being Army general counsel in the Reagan administration, DoD inspector general during the administration of George H.W. Bush, and a judge of the United States Court of Appeals for the Armed Forces from 1991 to 2006.
But the torture-troll squad is out in force today, infecting a legal blog by calling anyone expressing this legal opinion "pea brain."
That's true, JM, but further, the coercive interrogations themselves were policy, and both Obama and Holder have referenced this all as a "policy disagreement", not a legal issue. These statements have been out there long enough that we'd know it if they required clarification... and they haven't done so. When I saw Holder in front of Congress saying that... I knew it right then... GAME OVER.
He's backing and filling on all of this, now the military commissions, and I half expect Obama to have waterboarded somebody before he leaves office. Why is this sorta stuff always so predictable?
I believe that to be an utter falsehood. It is just repetition of the Big Lie.
Holder has pledged that he "will not criminalize policy disagreements." But he has never, to my knowledge, "referenced this all as a 'policy disagreement,' not a legal issue."
To the contrary, Holder says this is a legal issue, and his responsibility is to distinguish between policy disagreements and actual violations of law.
No offense, but in addition to blocking any parts of investigating this, Obama and Holder are making sure to throw out enough boob bait to keep the shiny-eyed zealots happy. Look around though, and clear-eyed people see this to be the case. Actions speak louder than boob bait.
A nation of laws may sometimes look that way. When you come up with something better, please let me know.
That is simply a lie. I quoted Holder saying he would not criminalize policy disagreements. He did not say this was all just a policy disagreement.
Do you really not understand the difference between saying "I will not criminalize policy differences" and "whether waterboarding is torture is just a matter of polic differences"? I am afraid our different understandings of the English language precludes any meaningful dialogue.
Not necessarily a lie. I tend to think delusional better explains the poster. But, I would not rule out intentional deceit.
Perhaps if some of you so concerned with the the rosy, fake American image you'd like to believe is real American would have had relatives in that building. Then what would you think ? I'll bet you'd be standing at the court house steps , or on MSNBC's door with your law books in hand demanding why didn't we follow the dots.
Ka-BOOM, you'll gt another chance I'm sure.
I suggest the clever lawyers here figure out how. I'm sure it's not beyond your capabilities.
THIS is torture that we can all agree is a violation of the law - contrast this to waterboarding with strict limits and doctors standing by. Note that this was done by Al Qaeda, and the video proudly displayed by them. According to the arguments on this board, we are just as bad as them.
Judge for yourself:
From here.
Just ask those now old men who served the allied cause in the Pacific against the Japanese. When their buddies were found hanging with their genitals stuffed in their mouths (it did happen), our troops of the Greatest Generation were not inclined to be punctilious in observing the laws of war.
Which Obama seems to be doing by cheerfully continuing Bush's policies.
yay
I'm having a hard time reconciling your usual low regard for the views of the lawyers on this board with your belief that we can come up with something better than a nation of laws. (To be fair, it's not as if those positions make any more sense to me one at a time.) Also, if you're that nonchalant about throwing over our system of government, what is it you think warrants torturing our enemies to defend?
our street cred
There would seem to be significant differences between roughing someone up when capturing them and doing so after they no longer pose a direct threat.
We just experienced a similar distinction with Arizona v Gant wherein securing the arrestee removes the cause to search for threats in spaces the arrestee can no longer reach.
Therefore, in the interests of expediency, we should appoint Messrs. Bush and Cheney and Ms. Rice to an Extra-Ordinary High Commission. The EOHC will operate with whatever rules it chooses, or no rules at all.
The EOHC will have the binary power to release a prisoner or order the prisoner shot. That's it. No other choices. The executions, if any, will be carried out in the back alley behind the EOHC office.
If you don't like the name EOHC, then we can call it “RevTrib”. I'm rather indifferent on that point.
That's all you can do, when the evidence is unredeemably fucked.
That might be relevant to prosecution of U.S. interrogators and their superiors, but I don't see how is relevant to the question in this thread, which concerns th prosecution of the detainees. Also note that the abuse of 14 of the detainees now held at Guantanamo did not occur there, but at CIA black-site facilities elsewhere.
In any case, Geneva Common Article 3 protects the prisoners wherever they were held. (And for purposes of the conduct of U.S. personnel, that means the War Crimes Act also applies. The WCA criminalizes not only torture, but also cruel treatment that does not rise to the level of torture.)
So you see no distinction between a grunt who obviously knows nothing and the admitted leader and planner of many mass murders of innocents, i.e., 9/11, who is very likely to know of the existence of plans for future attacks? (Of course, if you believe it was Bush who did it with thermite bombs, I could understand why you think that someone like Khalid Shaikh Mohammed was not in a position to know about "direct threats".)
The type of logic that equates the caterpillar-in-a-cell-is-torture theory with the virtual dismemberment while still alive of even non-combatants by an implaccable foe who makes no secret of his intent to do it to as many infidels as possible, including children, because they don't believe in Allah, totally escapes me. But then again, it's probably just me. I've never been a fan of the left's totally dishonest use of moral equivalence.
We're taking a feather duster to a gun fight, soon to be an atom bomb fight. We will lose - period - if we continue to be unwilling to defend ourselves adequately, but hey, we'll be able to hold our head up high as we're escorted to the gallow and our preteen daughters are married off to the butchers. Maybe it would be a good idea if you actually followed what is going on in this conflict throughout pretty much the entire planet to understand just how evil this enemy is, but you won't. Doesn't fit the meme:
Jihad Watch
I suppose some of you believe that this threat will go away once the superior compassion and understanding of Obama and the left has time to undo the rabid cowboyism of Bush/Cheney. Don't count on it.
Hrmmm, more to the point I would simply say that what we have isn't worth defending if we have to resort to such means to defend it. The human cost of a proper defense would be far greater but the end result would be something to desire.
Unlike many others I don't reject society as suicide pact, though I prefer society as murder pact.
Yeah, I believe you 2 were a part of the zealotous who shrieked and screeched a month ago when I mentioned that Obama/Holder were about to treat this as a policy issue, and that the statement Obama released his first week in office confirmed that.
And then, Holder comes out and makes that statement to Congress... boob bait for the zealotous. He's keeping hope alive, I guess.
I've avoided these torture threads since, as you types devolve to calling everybody liars and such, much as you're doing here. You don't get it, but Obama and Holder sure seem to. Your argument is with them, not anybody else.
They've punted, and Levin punted just the other day if you notice. It's looking bleak for the zealots, for sure. But there's always some boob bait to cling to and keep warm, I guess.
Let's save it for a few months here, as your screeching isn't gonna do you any good, and the outcome is gonna wind up the same anyways.
After all the shrieking over this, I just find this statement hilarious. These Beltway bandits are a constant source of amusement.
My suggestion for Obama though, is he shoulda mixed in a little boob bait with this statement, like he did with the "policy disagreement" thing... this commission statement came out a little TOO clean, and the zealots need something to cling to.
Cheers,
Your first point is fair.
As to the second, I think the Court got it wrong. Common Article 3 applies to four classes of persons. But spies and saboteurs are not in any of those categories. The 4th Geneva Convention Art. 68 provides the death penalty may apply to saboteurs, if local law allows. The 1st Geneva Convention Art. 46 provides that spies are those not in military uniform, and that they do not have rights to POW status. Arguably, we were the occupying power in Afghanistan, so they would be saboteurs. If the Afghans allied with us were considered in control, then they would be spies instead.
The Court chose to apply Common Article 3 expansively, but by doing so effectively chose to make clauses pertaining to spies and saboteurs nullities. As I'm sure you're aware, when interpreting, one should not make words into nullities. If spies and saboteurs are defined to have different rights, then those rights should apply.
Grunts or leaders like Maher Arar and Khalid el-Masri? Just checking. People keep assuming we only tortured the bad guys. That assumption is provably false.
Thanks for taking the time to parse Common Article 3 and its relation to earlier iterations of the Geneva Conventions.
So far as I know, there has never been any rational reason advanced (in Common Article 3 or otherwise to abrogate the historic distinction between uniformed combat troops on the one hand and spies and saboteurs on the other. Since the beginning of warfare, this distinction has been preserved. Spies and saboteurs have always known their lives are forfeit if they are caught.
If that were not so, conventional troops and civilians would always be subject to clandestine destruction of person or property without proportional risk to the spy or saboteur.
You misinterpret. I think some of the most ardent opponents of the enhanced interrogation may be clever enough to find a way to prosecute these terrorists within the law, if their ox was being gored.
As to my regard for the views of lawyers on this board... one of the reasons I come here is to learn from the legal reasoning, whether I agree with it (in a policy, not legal, sense) or not. I do suspect that, in areas of national defense, there is too great an intellectual deference to the output of the bureaucratic system which produces legal precedent. That deference is natural for those who have chosen their careers within that context.
But to the policy point...
What effective interrogation techniques are we allowed to use with high value prisoners which still allow us to do anything with them other than turn them loose after we are done?
This requirement for perfection in the selection of those to be interrogated is disingenuous. It is the equivalent of condemning our justice system because it occasionally imprisons innocent people.
War is hell. The "fog of war" is well known. Interrogation will produce injustices just like bombing or invasion or prosecution or any other coercive action of the state.
Allow them limited contact with the outside, and use our SIGINT capabilities. Trace their support networks. It's not like they're getting orders from the Kremlin. Exploit the asymmetry.
We do the stuff we're really, really good at.
Here's the full exchange:
It sure looks to me like "I suggest the clever lawyers here figure out how" refers to "When you come up with something better [than a nation of laws], please let me know." How am I misinterpreting that?
Bureaucracies don't create legal precedent. Adjudicated legal controversies create legal precedent.
It's natural for a nation of laws. When you come up with something better, please let me know.
Anything that's not legally prohibited. If you think that's a problem, change the law. That's the proper forum for policy debates.
The legal system has very bureaucratic aspects, which is what I was referring to. BTW, bureaucratic is not necessarily a pejorative.
I am asking. What is not legally prohibited which can be used? For criminals in the US, there is almost nothing. How about for suspected terrorists, captured and held outside the US?
If we relied on those techniques, we would know almost nothing about AQ at this point. The limitations of SIGINT, especially against these kinds of networks, are extreme. Likewise, other typical techniques are very difficult when dealing with theological/ideological organizations where trust is based strongly on clan relationships and long personal relaitonships.
Instead, by interrogation (coercive or otherwise), we know a lot.
But... what of that information can we use to prosecute them? Can we use information derived from sleep deprivation? How about if we "slapped" a subject as part of interrogation?
Are we faced with the choice of effective interrogation, followed by release due to tainted evidence, or no interrogation and then prosecution based on, well, what little we can gather from other sources?
I am not an expert in international law, but my understanding of the applicability of Common Article 3 was not a question of persons (all "persons taking no active part in the hostilities" are covered), but the class of conflict: Does war with a non state actor such as Al Qaeda present a "case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties?" The Bush administration argued no, that such conflicts were limited to civil wars within single nations; some others around the world said otherwise. In Hamdan, the court ruled against the government, so CA3 applies.
I really don't see what the question of detainee torture and cruel treatment, prohibited by CA3, has to do with spies and sabateurs being tried and executed. No one argues that Al Qaeda prisoners have privileged POW status, merely that they are entitled to the more basic protections afforded by CA3. We may be able to try such persons for war crimes; I really am not sure. But we still don't get to torture them.
And in any event, since we were discussing the future prospect that past mistreatment of the captives may foul the chance to prosecute them (as Judge Crawford determined in the case of Al Qahtani), the legal status of CA3 is what it is. I'm sure you will agree that "Ariel thinks the court got it wrong" will not be dispositive with future courts or tribunals.
Oh, glad to hear from an expert.
Someone transmits a message from a fixed location, at a known time, with guessable meaning—and the message can't be followed.
That means we can cut NSA's budget. That'll save some sleepless nights at OMB.
Guessable meaning? That's a good one.
Fixed location? Like an internet cafe at an airport?
Tell me how SIGINT works for a message transmitted by hand courier on a flash drive.
How does it tell us the thinking of terror leadership when they communicate in person?
How does it help if they use strong encryption? Sure, we don't know the extent of NSA's cryptoanalysis capabilities (and I hope THAT doesn't leak), but we do know that one time ciphers, used right (unlike VENONA) cannot be broken. And guess what, I'll bet some of the degreed engineers at Al Qaeda know that too - and you can distribute enough bits to encrypt anyting you want on one flash drive these days.
The enemy understands at least the rudiments of SIGINT. We try to keep them guessing at our capabilities (which is why it was unacceptable to release the information about the NSA wire taps), but they are not stupid.
Trying SIGINT against AQ is just trying to fight the last war. We're only pouring money down a rathole. Lots of money. Big rathole. It's futile. Absolutely futile. And it's wasteful.
They can't do the mission.
And we can't afford the waste. The money is better spent elsewhere.
Time for NSA to pack it in. Call it Miller Timer—for good.
Besides, NSA's former director pissed on —and pissed off— so many folks on the Hill, no one's really going to scream that hard when OMB takes a great big bloody budget axe to that obsolete hunk of cold-war legacy.
OK. I understand and I agree.
I don't know. Not my field. Aren't they spelled out in Army and CIA interrogation manuals?
So any technique in the Army Field manual and CIA manual produces evidence which can be used in trials, but waterboarding taints the evidence to where they cannot be tried?
We do seem to be awful binary today - either SIGINT is all we need, or SIGINT is useless and should never be used.
You are promoting that straw-man, not me.
I merely claim that means beyond SIGINT are required in this war.
I don't think you get it.
There's a budget crisis. There's always a budget crisis. But this one is worse than most. Lots worse.
If NSA can intercept DPRK telemetry, they get that job.
If NSA can't intercept AQ commo, they don't get that job.
That simple.
It's like dollars and cents. Only with more zeros. Lots more zeros.
You forgot to quote the circumstances under which Common Article 3 applies:
[emphasis indents and bolding added]
You will agree, won't you, that since September 11, 2001, the US has been engaged in armed conflict "of an international character"? Even though damage occurred on our territory, the individuals causing the damage were not citizens of the US, and most of the armed conflict has occurred in Afghanistan and Iraq.
Even if the latter states are High Contracting Parties (and I am not sure that they are) because of the international character of the conflict, Common Article 3 by its terms does not seem applicable.
Again, binary. Of course NSA is intercepting some AQ commo, because of the amorphous, distributed nature of AQ. And of course AQ knows that, and given the various leaks, even knows some particulars, but we hope, not all.
That does not mean, however, that SIGINT is a sufficient source of intelligence.
The US has learned, the hard way, that over-reliance on technical means is a recipe for disaster.
This is one reason I don't engage in SCOTUS worship.
Are you familiar with the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody?
Specifically, I'm wondering whether you've had a chance to look at any of Senator Levin's Supporting Documents?
As Senator Levin related, "In early November 2002, in a series of memos, the services identified serious legal concerns with the techniques and they called urgently for additional analysis.”
No, I don't agree to that, and the United States government most assuredly does not either.
Because within the context of Geneva, a conflict "of an international character" would be equivalent to a traditional conflict between nations, which is what the rest of the Geneva Conventions are all about. That would actually promote the privileges of our Al Qaeda adversaries above the minimal protections they get under CA3. For example, AQ belligerents would be privileged to kill our combatants with immunity from criminal action.
The construction formerly adopted by the United States by the Bush administration (and, IRRC, others) had interpreted CA3's scope to include only intra-nation civil wars. The alternative, broader interpretaton -- now effectively adopted under Hamdan -- is that CA3 is a catch-all provision applying minimal protections to armed conflicts that don't qualify as inter-national wars.
The short answer is yes. The long answer is that we have been over and over and over that in various threads here. I'm not taking the bait.
Which is an amazing over-reach.
There was probably a reason the word "international" was used and the word "war" was not, even if it escaped the notice of SCOTUS. International, by construction, means between nations, but by convention and definition, means that, AND, between people of various nations.
Anyone who says we are not engaged in international armed conflict must be a fan of the new administration's definition: "Overseas Contingency Operation."
I'm not an expert either, and the fact that I think so clearly does not mean that it is dispositive!
That said, as you rightly point out, Common Article 3 applies to persons taking no active part in the hostilities. Spies and saboteurs (which, IMO, are the two classes the terrorists could fall into) are not people taking no active part. The GC don't have much on them, but they do have something.
Maybe the government failed to make that argument, or maybe they didn't expect the Court to read the "no active" part out of CA3 or to ignore references to spies and saboteurs. I'm not in their heads, so I don't know.
I'm not saying we should torture them, but merely that CA3 does not prohibit torturing them. It does not apply to them - they are not taking "no active part" in the conflict. In any case, you are of course right that, post-Hamdan, a court would exclude evidence obtained by torture. Even w/o CA3 applying, I'm not sure how a federal court would be able to admit evidence acquired from torture - it seems like it would have to be excluded, at least partly b/c the judge would not have familiarity with the likelihood that the information is real.
Under CA3, even persons who have taken active roles in combat at protected from abuse after they are detained:
Even a spy is a "person[] taking no active part in the hostilities" while he is detained. Geneva provides no free pass for torturing spies.
The great significance of the court's holding that CA3 applies, I think, is that it expressly prohibits not only torture but also lesser forms of cruel and degrading treatment. That triggers the War Crimes Act, for example, as far as criminalizing misconduct by either U.S. or enemy interrogators. So even abuse that does not rise to the level of "torture" under the Torture Act is still a felony under the War Crimes Act. (That was the motivation for the retroactive amendment of the WCA after Hamdan. The legalistic shield that CA3 simply didn't apply to the Al Qaeda conflict had been stripped away.)
What I am not sure of -- and what has been very much at issue when military commissions are debated -- is the related question of whether such lesser misconduct taints action against the detainees themselves. It is clear from Judge Crawford's action that "torture" under detention can preclude prosecution, however.
No, my requirement for perfection in who we select to torture is genuine. If we were only interrogating people there would be no need to bring up the innocent people that were tortured. Your conflation of interrogation and torture is disingenuous.
I'm making two alternative arguments:
- CA3 does not apply by its own terms
- Spies and saboteurs are separately described, so CA3 does not apply.
Your argument addresses the first. But note: AQ folks are not members of armed forces, b/c they could not even qualify for the lesser definition of militias and members of other volunteer corps, including those of organized resistance movements. Common Article 13 requires the following conditions to be in the lesser definition:
"(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war."
Again, CA3 does not apply to AQ, by its own terms.
I'm not arguing that we shouldn't voluntarily apply it, regardless.
Again, arguing that now is relitigating Hamdan. On some level, you are free to do that, just as some of us think Roe v Wade was wrongly decided. In any event, your argument about spies and saboteurs is not at all the argument made by the Bush administration in 2001.
FWIW, while I think your theory of construing Geneva is basically from outer space, I don't necessarily think the same was true about the Bush administration's opinion in early 2002. However, as a practical matter it also was not settled law at the time the opinion was rendered. As it turned out, the Supreme Court knocked the theory down. Applying CA3 to this particular conflict is now the supreme law of the land.
I'm not arguing that we shouldn't voluntarily apply it, regardless.
That was, perhaps, the original sin of the Bush war council -- just about the only piece of this mess that I will acknowledge to be a "policy" matter. But if this was just policy, it was not just immoral but stupid policy.
The decision not to act consistently with CA3's minimal protections in the conflict with Al Qaeda -- even if the government insisted it was not legally bound to do so -- put our soldiers and CIA officers, not to mention high officials, in legal jeopardy. (That middle ground was essentially the course recommended by Colin Powell, IRRC.)
If we had abided by the basic terms of Geneva, we would not have been guilty of lower forms of abuse. And we would never have approached the line between cruel treatment and torture. And U.S. agents and officials at various levels would not be vulnerable to prosecution as war criminals.
You're right that the Supreme Court has said I'm wrong. Unlike Roe, I think I have a better case to say that - there is very little text to support or undermine Roe. But there is actual text to support my interpretation of CA3. That doesn't mean that my view has any legal weight, now that the USSC has decided, of course.
Actually, I don't think the Supreme Court ever considered your theory about spies and saboteurs, because the government did not argue that theory. Rather, it argued the more conventional (and I think more defensible) theory that CA3 only applied to civil wars.
But obviously the court did adopt a result you disagree with.
Here is the full text Common Article 3, Section (1):
It seems clear from the structure of the Article that Section (1) applies only under the circumstances described in Article 3's unnumbered preamble. I understand that some have interpreted it differently, but I think that those who have are not reading the Article correctly.
How do you parse the actual language to reach the opposite conclusion?
How do you parse the actual language to reach the opposite conclusion?
My own humble reading of the language, as well as the Red Cross commentaries, does not lead me to conclude that CA3 necessarily applies to the conflict with Al Qaeda. As I said above, I think the U.S. government had a good case to the contrary: that Article 3 applied to civil wars. As I understand the history in our country, the Bush administration position on that point was not novel, nor did the OLC opinion to that effect conflict with the State Department opinion at the time.
For that I rely greatly on the account of Marty Lederman here:
But the Supreme Court, 5-4, adopted a different view in Hamdan. It held that CA3 does apply as a matter of law.
I guess I am too old school in the area of treaty interpretation. Or perhaps CA 3 reads a bit differently in French;>)
My point is that whether anyone else agrees or not, the Hamdan holding is the law of the land. (BTW, I got the vote on that holding wrong in my comment above. It was 5-3. Chief Justice Roberts did not take part.)
So in the context of the topic of this thread, on issues related to treatment and trial of detainees from this conflict going forward, Geneva CA3 applies.
I recognize that Hamdan is the law of the land, and is controlling law of the US unless/until overruled.
But Hamdan wasn't the law of the land when, for example, the Yoo/Bybee memos were written. There is support for at least some of their positions in the dissents.
I am sure you don't agree with all of the decisions the Court has written. Remember, Plessey v. Ferguson and Dred Scott, among many others.
To my knowledge, the issue from Hamdan we have been discussing -- the applicability of Geneva CA3 -- has nothing to do with the Yoo/Bybee torture memos of Aug. 1, 2002, which focused narrowly on interpreting the Torture Act.
I believe you are incorrect. That memo was a follow on to a memo in January 2002 which extensively discussed the scope of Common Article 3 as it was incorporated into the Torture Act, and as it should be applied to the conflict with Al Queda.
No, it is you who are incorrect. The January 2002 memo discussing Common Article 3, to which you link, did not involve the Torture Act (18 USC 2340 et seq).
Rather, the January memo discusses how violations of CA3 were criminalized by a different statute -- the War Crimes Act 18 USC 2441. The memo said that because CA3 did not apply as a matter of law, the criminal enforcement provisions of the WCA did not apply. That memo also helped justify Bush's own finding on February 7 that the captives would not be treated according to the Geneva Conventions at all.
It was the Torture Act that was addressed by the two Bybee memos of Aug. 1, 2002. No one disputes that the Torture Act -- which has nothing to do with Geneva but rather implements the U.N. Convention Against Torture -- applies to treatment of Al Qaeda captives. The Bybee memos of August were mostly about parsing the definition of "torture" within that statute. (There also were other generalized assertions about separation-of-powers.)
Bybee concludes that reading the two together, an accused is not guilty of "torture" under the UN Convention unless s/he commits acts "specifically intended" to cause "severe physical or mental pain or suffering".
And that footnote depends not one iota on whether Geneva CA3 applies to this conflict, which is the only thing that Hamdan addressed relative to detainee treatment. (If anything, because CA3 supposedly did not apply at all to this conflict in 2002, the footnote was arguably inapposite for that reason.) This turned out to be a rathole, I'm afraid.
Whether apposite or not, it was part of the overall body of law considered.
I am ready to quit the dialogue, though, as I agree with you there is no utility chasing it any further.
You made some interesting points. Thanks for engaging.
It is disingenuous and inconsistent unless you apply the same criteria to those whom we, say, sentence to prison for life. I suspect you would prefer a month of waterboarding to a life in prison, sans waterboarding, right?
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