Playing With Fire: The Administration's Draft Bill on Detainees Would Violate the Geneva Conventions and Thereby Put Americans at Risk

By MICHAEL C. DORF

Monday, Jul. 31, 2006


The Supreme Court's June ruling in Hamdan v. Rumsfeld invalidated the military commissions that President Bush had instituted to try Guantanamo Bay and other detainees for war crimes. The Court held that the commissions were not authorized by Congress and did not satisfy Common Article 3 of the Geneva Conventions.

Over roughly the last month, members of Congress and the Administration have floated various proposals regarding the treatment of the detainees. One proposal--favored by some current and former military lawyers--would provide any detainees charged with war crimes with a trial by court-martial under the rules of the Uniform Code of Military Justice. That proposal would clearly satisfy the Supreme Court, because it would both provide the necessary congressional authorization and would comply with Common Article 3's requirement, as interpreted by the Court in Hamdan, that detainees be tried by a "regularly constituted court."

Another proposal--favored by some hawks in the Administration and Congress--would authorize the very military commissions that the Court found lacking in Hamdan. Whether this proposal would satisfy the Court is not entirely clear. A concurring opinion joined by four of the five Justices in the Hamdan majority indicated that with congressional authorization, the original commissions would be acceptable, but the majority opinion itself appeared to indicate that the Geneva Conventions imposed substantive requirements that congressional authorization alone could not overcome--unless Congress chose to violate the Geneva Conventions, a truly radical step.

Last week, the New York Times and other news organizations received a leaked copy of an internal Administration draft bill that basically takes the hawkish view. Labeled "For Discussion Purposes Only, Deliberative Draft," the proposal is clearly preliminary. Let's hope that it undergoes substantial modification before enactment, for as I explain below, the bill can withstand judicial scrutiny only by superseding the Geneva Conventions--and thereby exposing members of the U.S. armed forces to the possibility of ill treatment abroad.

The Draft Bill's Narrow Reading of Common Article III

Shortly after the Supreme Court's Hamdan decision, President Bush announced that he would comply with it. Yet in nearly every respect, the proposed bill looks more like an effort to evade the ruling.

The linchpin of Hamdan was the Court's ruling that Common Article 3 of the Geneva Conventions applied to suspected al Qaeda members captured in Afghanistan. The Court reasoned that the conflict in Afghanistan (a Geneva Conventions signatory) was not between nations, but rather between the United States and Al Qaeda, and therefore it was an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." Reasonable minds can differ over whether this was the best reading of the treaty language, but now that the Supreme Court has ruled on the question--and the President has declared his intent to abide by that ruling--one would think that the matter is settled.

The proposed bill expressly recognizes that the Supreme Court rejected the Administration's view that Common Article 3 does not apply to suspected terrorists. Yet it goes on to employ categories that only make sense on the assumption that Common Article 3 does not apply. Common Article 3 requires humane treatment of all non-combatants and detainees, and forbids war crimes or other trials except by "regularly constituted court[s]." As interpreted by the Supreme Court in Hamdan, this language applies to everyone captured in Afghanistan (and Iraq, for that matter). Nonetheless, the Administration draft distinguishes between lawful enemy combatants--those who comply with the law of war by, for example, wearing uniforms and protecting civilians--and unlawful enemy combatants--who attempt to blend into the civilian population and/or target civilians.

Someone who deliberately targets civilians thereby commits a war crime, and so, in determining whom to charge with war crimes, it is appropriate to distinguish those who fight by the rules of war from those who don't. But the distinction the draft bill draws between lawful and unlawful combatants is not intended to distinguish who gets convicted of war crimes from who gets acquitted. It is intended to distinguish persons who, if charged with a war crime, get the procedural protections of a court martial or civilian court, from persons who, if so charged, are relegated to a military commission with lesser protections.

That, however, is the very distinction that the Supreme Court rejected in Hamdan in holding Common Article 3 applicable to all persons detained during combat in Afghanistan. Thus, the draft bill's substance seems to directly contradict the Supreme Court's plain ruling.

The Draft Bill's Expansive Definition of Enemy Combatants

The draft bill may contravene the Hamdan ruling in other respects as well. Because the draft bill was not, so far as appears, intended to be shared with the public, it includes interesting clues as to its evolution, such as provisions that have been crossed out. One of these crossed-out provisions would have restricted the bill's coverage to persons who are not citizens of the United States. The draft instead would define an enemy combatant as "a person engaged in hostilities against the United States or its coalition partners who has committed an act that violates the law of war and this statute."

The definition does not restrict "unlawful enemy combatant status" to al Qaeda members. It includes, "but is not limited to, an individual who is or was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." This language would almost certainly cover most insurgents in Iraq, but it is not limited to Afghanistan and Iraq.

Perhaps more troubling is the "supporting" language. In the Hamdan case, four Justices (of the eight who participated) would have ruled that conspiracy is not a crime under the international law of war, and thus that Hamdan himself, who was accused of having been a driver and bodyguard for Osama bin Laden, arguably could not be prosecuted at all--at least, absent allegations and evidence of some more active role in the crimes of al Qaeda. By defining "support" for organizations that engage in war crimes as equivalent to participation in the war crimes themselves, the draft bill potentially runs afoul of this aspect of Hamdan.

The Draft Bill's Narrow Definition of Torture and Degrading Treatment

The draft bill may also run afoul of the Geneva Conventions' requirements of humane treatment of all detainees.

The draft bill states that "the standards for treating detainees under the Detainee Treatment Act of 2005 fully satisfy any obligations of the United States regarding detainee treatment under Common Article 3(1)." In addition to requiring that detainees "shall in all circumstances be treated humanely," Common Article 3(1) specifically prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment." Does the Detainee Treatment Act ("DTA") satisfy this standard?

The relevant language in the DTA closely tracks the Geneva Conventions' Common Article 3. The DTA forbids all "cruel, inhuman, or degrading treatment or punishment." It then goes on to define that term as equivalent to the forms of cruel and degrading treatment or punishment that the U.S. Constitution forbids domestically.

Granted, there may be borderline cases in which an international body would forbid some form of treatment or punishment that a U.S. court would permit under the Constitution; that is why, when the U.S. signed onto the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, it included a reservation stating that the U.S. would interpret the Convention to provide no more protection than the Constitution affords domestically. But these are marginal cases. The most controversial methods reportedly employed by the CIA and Department of Defense--including waterboarding, mock executions, and stress positions--are pretty clearly forbidden under the DTA's language.

But the DTA's language does not stand alone. While Senator John McCain and others who originally backed the DTA may have intended it to have broad effect, when the President signed it into law, he released a signing statement that indicated he thought that, notwithstanding the actual language of the DTA, his constitutional authority as Commander-in-Chief gave him the power to treat detainees however he wished, if he judged such treatment to be in the national interest.

It is fair to assume that when the Administration's new draft bill refers to the DTA, it refers not to the actual language of the DTA but to its own very narrow reading of the DTA. And that narrow reading--if it preserves the power to use harsh interrogation techniques--almost certainly runs afoul of Common Article 3.

Does the Draft Bill's Assertion of Impracticability Satisfy the Hamdan Standard?

The central operative holding of the Hamdan case was that, absent congressional authorization, the Administration could not try enemy combatants before military commissions lacking the procedural protections of courts martial, absent a demonstration that affording those protections would be impracticable. In response, the Administration draft includes "findings" of impracticability.

Some of these findings seem plausible, asserting that national security could be compromised by sharing with suspected terrorists evidence that could reveal sources and methods of intelligence. If such a suspect were mistakenly acquitted or otherwise managed to communicate what he learned during trial to his comrades, that information could indeed be used to harm the United States.

However, it is not clear that the draft bill's mere assertions would satisfy the Supreme Court, which, after all, was fully aware that the persons to be tried by military commissions were likely to wish harm on the United States. What the Court appeared to demand was evidence that courts martial could not accommodate national security concerns, not mere assertions to that effect.

Moreover, another justification recited in the findings section fails on its own terms. The draft bill would permit the admission of "probative and reliable" hearsay in military commission proceedings, even though the Uniform Code of Military Justice would not, because the relevant defendants rarely "declare their intentions openly but instead pursue their terrorist objectives in secret conspiracies . . . ." That is certainly true, but one could readily substitute "criminal" for terrorist in making the argument for the impracticability of excluding hearsay in all cases. Perhaps there are reasons why a hearsay exclusion is especially problematic in war crimes trials of suspected terrorists. But the draft bill does not in fact recite any.

Legislation Can Supersede a Treaty

Does Congress have the power to adopt the Administration's proposed bill? The short answer is yes. As noted above, four of the five Justices in the Hamdan majority indicated that congressional approval could validate the military commissions.

That conclusion would not change even though the proposed bill violates Common Article 3 of the Geneva Conventions. Under the Supremacy Clause of the Constitution, statutes stand on an equal footing with treaties; when two conflict, the later-in-time provision--here, the statute--prevails.

Indeed, despite the draft bill's assertion that it satisfies the Geneva Conventions, the Administration appears to recognize the weakness of these claims. Another provision of the draft states that "the Geneva Conventions are not a source of judicially enforceable individual rights." Translation: We do not really need to worry about the Geneva Conventions because we're stripping the courts of any authority to enforce them.

Is that permissible? You bet. Whatever its prior status, under the proposed language and the last-in-time rule, Common Article 3 would be non-self-executing: That is, the United States would continue to be bound by the Geneva Conventions as a matter of international law--because it had not formally withdrawn from them--but the Conventions would be unenforceable in U.S. courts. The United States, in other words, would be in breach of the Geneva Conventions.

The Price American Soldiers Would Pay for U.S. Disregard of the Geneva Conventions

Congress can do that. It can leave in place an international commitment, even as it authorizes its violation domestically. But in doing so, Congress, or to be more precise, American servicemen and women, would pay a terrible price. By violating the rights of our detainees under the Geneva Conventions, we would forfeit the moral authority to demand humane treatment of our own service members should they be captured.

The Administration responds to this argument by observing, correctly, that groups like al Qaeda and the various insurgents in Iraq already abuse and torture prisoners. But this argument overlooks the universality of the Geneva Conventions. In an increasingly hostile world, we may find ourselves engaged in hostilities with more conventional foes who, whatever their other flaws, observe reciprocal norms of humane treatment out of self interest, but only so long as the other side does the same. And that is to say nothing of either the moral argument that torture and degrading treatment are simply wrong, or that they create sympathy for our enemies.

The Administration should substantially modify its draft proposal. If not, Congress should reject it.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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