The President announced his intention to push legislation reinstating military commission trials for Al Qaeda terrorists in response to this summer’s Supreme Court decision in Hamdan (see here). Although Congress cannot necessarily "overturn" the holding in Hamdan, it can issue a different interpretation of the Geneva Conventions. This different interpretation may violate the Geneva Conventions, which could subsequently jeopardize U.S. soldiers abroad. A summary of the Hamdan decision can be found here, which stated that the President cannot try Al Qaeda terrorists by military commission for a variety of reasons, including the fact that such a commission would violate the Geneva Conventions.
In Hamdan, the Bush administration argued that there were two military conflicts occurring simultaneously in Afghanistan when Hamdan was detained, viz. the war with the Taliban and the war with Al Qaeda. Since Al Qaeda is not a signatory of the Geneva Conventions and Hamdan’s detention was a result of the conflict with Al Qaeda, the Bush administration asserted that the Geneva Conventions did not apply.
The U.S. Supreme Court held this reasoning to be “erroneous”. The Court pointed out provisions in the Geneva Conventions that undermined the Bush administration’s argument: Common Article 2 states that the Geneva Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” Furthermore, Common Article 3 provides minimal protection to individuals that are not associated with a signatory or a nonsignatory power but who are nevertheless involved in a conflict within “the territory of” a signatory. The Court notes that the commentaries to Common Article 3 make clear “that the scope of the Article must be as wide as possible.”
The Court concludes that Common Article 3 is thus applicable to Hamdan and requires that he be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable to civilized people.” The core meaning of the term “regurlarly constituted court” is determined by the Court to include ordinary military courts and excludes all special tribunals.
At the Georgetown Law Faculty Blog, in a post entitled, “Top Ten Myths About Hamdan, Geneva, and Interrogations”, Martin Lederman briefly elucidated why the Common Article 3 holding of Hamdan was 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.)
(See also “The Importance of Geneva Common Article 3” at Balkinization.)
The Authority of Congress & The Aftereffects
According to the blog Balkinization, the draft Administration bill "would (i) retroactively legalize all the unlawful acts that were approved and performed from 2001 to the present day (see section 9, page 86); (ii) would cut off all judicial review of U.S. compliance with the Geneva Conventions (section 6(b), page 79); and, most importantly, (iii) would authorize the CIA -- and, for that matter, other agencies, including DoD itself -- to engage in what the President today euphemistically referred to as the CIA's 'alternative set of [interrogation] procedures.'"
The question then arises whether Congress has the ability to override or even interpret the Geneva Conventions? Julian Ku at Opinion Juris argued that the "last in time rule" authorizes Congress to endorse and legalize the Administration’s policy through simple legislation (see here). According to a construction of the last in time rule explicated by Ku in an article published by the Indiana Law Review, "[T]he text of the Constitution grants treaties the status of enacted domestic law. As such, treaties are subject to the principle of statutory construction, leges posteriors priores contrarias abrogant (later laws abrogate prior laws that are contrary), unless otherwise indicated by the Constitution's text or structure."
However, according to Martin Lederman, although Congress can pass a statute declaring that it disagrees with the Court's interpretation of Common Article 3 of the Geneva Conventions, Hamdan would still be binding as a matter of domestic law within the U.S. courts. Lederman goes on to add:
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). . . . 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.
A Few Words about the Separation of Powers Debate
Overshadowing the entire debate surrounding Hamdan (and Hamdi) is an argument about the Separation of Powers between the Executive, the Legislature, and the Judiciary. The Opinio Juris blog put up a post entitled, “A Tale of Two Hamdans”, which briefly features rhetoric from two sides of the argument. Professor Doug Kmiec said the following:
The reason Hamdan is a headline case, perhaps the headline case, for this term is because that precept, the precept of courts being wary and humble and intervening with the decisions of the political branch in matters of foreign affairs, was tossed aside. And tossed aside as if, in fact, it was a regular thing to do. Justice Jackson himself, the same author of the [Youngstown] categories that we find so useful, said ‘a judge, like an executive advisor, may be surprised at the poverty of really useful and unambiguous authority applicable to the concrete problems of executive power as they present themselves.” Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, had they foreseen towers attacked by commercial airliners on 9-11, said Justice Jackson “is as enigmatic as the dreams Joseph was asked to interpret for the pharaoh.” “One can find”, said Jackson, “more or less, apt quotations from respected sources on each side of any question.”
On the other side of the debate was Professor Erwin Chemerinsky, who said:
I think that there is a very strong parallel to what the Supreme Court did in the Hamdan case, what it would be likely to do with regard to electronic eavesdropping. The reason is, in Hamdan the Supreme Court said there is statutory and treaty provisions on point.... The Court was unwilling to regard the general authorization of use of military force as enough. Well, now view these in the context of electronic eavesdropping.... So what does the executive claim here as to how it could violate the law? Two things. One is inherent presidential power – the President has the authority, just by virtue of being President and Commander in Chief to authorize searches without complying with the Fourth Amendment. But I don’t think the Court’s going to buy that because is no stopping point to that argument? If the President can authorize electronic eavesdropping without a warrant, can you authorize federal law enforcement to go into people’s houses without a warrant to search there? If President’s powers could trump the Fourth Amendment, why not the First Amendment. If the President has this authority, why can’t he even cancel elections as mandated by the Constitution. Where is the stopping point to the President’s claim to power? The other claim the executive makes is the authorization for use of military force. But there, to go back to your question, I think Hamdan is directly on point because that’s where the court says ‘it’s not a blank check.’ A general authorization for use of military force doesn’t mean that the president can do whatever the president wants – like creating military tribunals or authorizing electronic eavesdropping that violates the Constitution and federal statutes.
Comments