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July 11, 2006

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Woohoo! Or, anyway, at least it's something.

After all, the whole point of the GC is to prevent exactly what we're doing now. They're designed to make sure that captives fit in to one or another specific category, and that nobody falls through the cracks.

Prisoner of war? Treat them humanely and keep them until the end of the war, under Red Cross supervision.

Criminal? Charge them with specific crimes and give them a fair trial in open court.

There's no category of "bad guy", where we can do whatever we like to them.

Better to read the memo before falling for the administration's spin.

The money language:

It is my understanding that, aside from the military commission procedures, existing DOD orders, policies, directives, execute [sic] orders, and doctrine comply with the standards of Common Article 3 and, therefore, actions by DOD personnel that comply with such issuances would comply with the standards of Common Article 3. * * * In addition, you will recall the President's prior directive that "the United States Armed Forces shall continue to treat detainees humanely," humane treatment being the overarching requirement of Common Article 3.

In other words, the Pentagon says it's already complying with CA3 and doesn't need to change a thing.

Marty Lederman's post on the subject recites the kinds of things that the Pentagon has deemed "humane." Waterboarding, for instance.

This memo is a bad joke on the credulous media and the public who rely upon it.

"Spencer Ackerman (behind TNR's annoying subscription wall)...."

The Plank isn't behind the subscription wall.

The Plank isn't behind the subscription wall.

However much Marty Peretz makes us wish that it were, sometimes.

Once again I think this is both sides making way more out of the Geneva Conventions than is there. Complying with CA 3 (if it applies instead of the more typical POW/illegal combatant rules) isn't likely to hurt the war on terror at all. We can still punish, detain indefinitely, or even execute terrorists. We just can't do all of those things to people merely suspected of being terrorists.

I would strongly agrue that CA 3 does not apply because the WOT should be treated as having an international character (and at the very least it should be treated as such for purposes of foreign fighters captured in Iraq or Afghanistan) which would mean that the more typical rules would apply. But in neither case would it be problematic to have individual hearings on the status of those captured.

Gary: I didn't know that -- since I have a subscription, it's hard for me to check. But good.

Anderson: I did read the memo. I can only hope that DoD lawyers decide to rethink the meaning of "humane", now that the Supreme Court has gotten into the act.

I would strongly agrue that CA 3 does not apply because the WOT should be treated as having an international character

What nation is al Qaeda, exactly?

I did read the memo.

Then I fail to understand the "DoD detainees get Article 3 protections" part of your post, because (1) they can't "get" what they already had, and (2) if they didn't already have them (my own view of course), they aren't going to start getting them, since the existing policies will continue.

I can only hope that DoD lawyers decide to rethink the meaning of "humane", now that the Supreme Court has gotten into the act.

And a pony.

Sebastian,

"We can still punish, detain indefinitely, or even execute terrorists. We just can't do all of those things to people merely suspected of being terrorists."

I largely agree. The problem is that this Administration has not agreed with this, and has gone to great lengths to avoid having hearings to determine whether those suspected of being terrorists (both those captured at home such as Padilla, and those captured in Iraq and Afghanistan) actually are terrorists.

Anderson: I don't know if it's a pony-style aspiration. As someone -- Lederman? -- said when Hamdan came out, one of its main effects will be to make it impossible for administration lawyers to argue in favor of certain positions. Insofar as the idea that things like waterboarding are actually legal is part of the reason they get done -- and I think it is, since otherwise it would be a war crime, and lots of people are not willing to engage in war crimes just because Bush asks them to -- that could make a considerable difference in practice.

Hilzoy, Hamdan is provisional at best outside the narrow issue of the military commissions. Certainly I think it correctly states the law, and applies CA3 in toto to anyone we detain.

But David Addington is not going to sit back and sigh, "oh, well, we gave it our best shot." By the time a case specifically about CA3's application to our human-rights abuses gets to the SCOTUS again, how many years will have passed? Which justices in the fragile majority will have left the Court? Who will have appointed their replacements?

These questions certainly merit Addington & Cheney's rolling the dice again. And there's no reason to believe the Pentagon won't go along with it. I very much doubt that anyone guilty under the War Crimes Act is seriously afraid of being prosecuted under it--more likely, it's just another bit of Republican spin.

For that matter, Bush's last act as president could be a prospective pardon for any violations of the War Crimes Act by any number of people. Why not? He'd be praised to the skies by the Republicans for warding off "political" prosecutions.

In short, however much I would like to be optimistic about the reach of Hamdan, I just can't see it. And I certainly don't see why we should even pretend that today's memo is anything other than Republican spin. It changes n-o-t-h-i-n-g.

"What nation is al Qaeda, exactly?"

We've already been through this topic in two previous posts.

See for example this comment by st. It is odd that so many people on the left positively insist on such a formulation anyway--GA 3 offers much less protection than applying the other standard. Again and again in the commentaries you see that some parties wanted to try to get the full Geneva Conventions applied to non-international conflicts, but GA 3 was the best they could get.

Following up, see Lederman's post on the DOJ's amazing letter to Chuck Schumer, baldly asserting that Hamdan changes *nothing* about the (supposed) legality of the NSA domestic-surveillance program ... a conclusion that, as Lederman observes, is practically indefensible.

I wouldn't be thinking that the same DOJ that wrote that letter has changed its mind about the definition of "humane," etc., etc.

In short, we can expect this administration to litigate every step of its retreat, like the Germans falling back before the Russians in 1944-45. Our judicial system is unfortunately wide-open to this kind of systematic disrespect by the Executive. Not for nothing did the Republicans pack the courts from 1981-93 and 2001-present. Clinton's relative lack of interest in countering this trend is one of his main failures as a president.

We've already been through this topic in two previous posts.

Well, if the comment from st is the best you've got to show, color me unimpressed.

Even looking solely at the part that Katherine excerpted, we find:

Up to 1949, the Geneva Conventions were designed to assist only the victims of wars between States. The principle of respect for human personality, the basis on which all the Conventions rest, had found expression in them only in its application to military personnel. Actually, however, it was concerned with people as human beings ....

This text has the additional advantage of being applicable automatically, without any condition in regard to reciprocity. Its observance does not depend upon preliminary discussions on the nature of the conflict or the particular clauses to be respected.

... the scope of application of the Article must be as wide as possible.... It merely demands respect for certain rules, which were already recognized as essential in all civilized countries....

How does any of that support your reading?

In short, these are the principles that apply in *any conflict whatsoever* to *any person not a POW*. Were the conflict "of an international character," then POW rules would apply. But, as was blindingly obvious to five justices of the Supreme Court, al Qaeda is not a nation.

Perhaps st will jump in & refute the foregoing.

Oops, I overlooked Marty Lederman's post where he recognizes that, in fact, the DoD memo signifies absolutely nothing, other than "abuse as usual."

Check it out--it would be really funny, if it weren't so true.

"In short, these are the principles that apply in *any conflict whatsoever* to *any person not a POW*. Were the conflict "of an international character," then POW rules would apply."

Sigh.

People are covered under either GA 3 or the POW conventions.

POW protections are stronger than the GA 3 rules. The text shows that, the commentaries show that, it simply is a fact. The commentaries show that some delegates wanted to incorporate all POW rules in to GA 3, but they couldn't so they settled for what we actually got.

Is that what you are saying?

Is that what you are saying?

Sure. The Hamdan Court didn't hold that detainees in general are entitled to POW status, and indeed, it seems implausible that they would be; the argument could be made for Taliban fighters, but it's my understanding--and correct me if I'm wrong--that a soldier must abide by certain rules to be entitled to POW status, and that the Taliban forces in general were unlikely to do so.

But if you're arguing for applying POW status to Qaeda, please say so. My position, and (for now) the Court's, is that CA3 applies.

And OT, I do so wish that ObWi would quit running a post title, "DoD Detainees Get Article 3 Protections." It's *not true*, and it's just playing into the administration's propaganda.

"But if you're arguing for applying POW status to Qaeda, please say so. My position, and (for now) the Court's, is that CA3 applies."

I'm actually arguing that the POW rules apply, and that Al Qaeda often doesn't fulfill the requirements for them. This means that they don't get POW protections. This doesn't mean that they are 'exempt' or 'outside' of the Geneva Convention rules. They just aren't POWs. That doesn't give the capturing party the ability to do anything they want. There are limitations on what you can do with spies and saboteurs.

The whole thing seems muddled from both sides. The Geneva Convention rules on the treatment of POWs probably don't apply. All sorts of other rules on the treatment of people do. I don't think GA 3 should apply, it should be all the other conventions that apply. But either way we can still capture, try and punish. The captured people fall into one of three categories.

1) Innocent People

2) Lawful Combatants (get POW treatment)

3) Unlawful Combatants (don't get POW treatment but do get other protections)

Vocal people on boths sides seem to be focusing on the wrong issue. Many critics of the administration seem to think that Al Qaeda should be considered lawfulcombatants and focus on the lawful/unlawfal combatant distinction. This would pretty much destroy the Geneva Conventions because it would completely undermine the distinctions that the Geneva Conventions are based on. People like Derek Jinks argue that a better system wouldn't make such distinctions, but that is a very different system--not the actual Geneva Conventions.

The administration correctly argues that Al Qaeda members are unlawful combatants, but incorrectly fails to implement good procedures (as mandated by the Geneva Conventions) to sort innocent civilians from unlawful combatants. Yes it is obvious that those who are combatants are unlawful combatants. But the administration is very wrong about the obviousness that each and every person is a combatant at all. It further errs in suggesting that unlawful combatants are offered no protection whatsoever--they are in fact just exempt from certain protections.

Sebastian: ) Unlawful Combatants (don't get POW treatment but do get other protections)

There is no reference to the category "Unlawful combatant" in any of the Geneva Conventions, Sebastian.

The memo isn't the be-all and end-all, but it's not nothing either. I think the wind is (or should be) completely gone from the sails of efforts in Congress to exempt WOT prisoners from the Geneva Conventions. This is more significant for the CIA prisoners, who are not covered by the memo, but are by the law of war (including Geneva).

Now the dispute can be over whether particular practices comply with Common Article 3, and I think the government's in for some losses there as well. And the blowback effects are greater too -- no one thinks that AQ is complying with the Conventions, so it may not make much difference in this war. But a ruling that waterboarding, for example, or use of the hunger strike chair for another, is consistent with Common Article 3 is a very big deal. In the next one, and all that follow.

"Gary: I didn't know that -- since I have a subscription, it's hard for me to check."

Whether something is subscriber-only, or not, at TNR, is indicated at the main page/table-of-contents. Those marked "TNRD" are subscriber-only; everything else isn't.

Oh, and you can also tell what's sub-only or not at TNR (and many other sites) via the URL: if it's got "ssl" in it, it's using a security protocol to encrypt confirmation of your ID, and that's only done at a publication site for something that's subscription only, or has to do with your account.

What rationale TNR uses to decide what's sub-only, or not, on the other hand, I have absolutely no idea.

I'm also baffled by the handful of sites that allow commenting only for paid subscribers. They don't seem to have the concept behind getting people to write content for you for free quite right, it seems to me....

"I would strongly agrue that CA 3 does not apply because the WOT should be treated as having an international character...."

What nation are we fighting?

"What nation is al Qaeda, exactly?"

We've already been through this topic in two previous posts."

Well, yes. Hamdan settled it. You can't simply ignore the law because you don't like it. Acting as if it isn't clear and settled now is... not going to get you far.

"I'm actually arguing that the POW rules apply, and that Al Qaeda often doesn't fulfill the requirements for them."

Well, you can argue that all you like, just like you can argue that any Supreme Court decision is "wrong," but why would your opinion matter to anyone, including you, insofar as what the actual law is?

I don't understand the relevance. So you don't like what Hamdan said: so what? It's the law.

Sebastian, the problem with your theory is that it appears not to make any sense:

I don't think GA 3 should apply, it should be all the other conventions that apply. But either way we can still capture, try and punish. The captured people fall into one of three categories.

1) Innocent People

2) Lawful Combatants (get POW treatment)

3) Unlawful Combatants (don't get POW treatment but do get other protections)

What "other protections" are those? Where are they enumerated? Help us out here!

Rebels, etc. are precisely the kind of irregulars which CA3 had in mind, since they wouldn't qualify for POW status.

So if you've got a Geneva article or section that applies to "naughty combatants," please share it with us.

Otherwise, you might consider that distinctions about "unlawful" vs. "lawful" combatants are precisely the kind of sophistry that CA3 was set up to avoid ... because any State that has lawyers in it can always come up with *some* b.s. reason to declare a combatant "unlawful." Those people do *not* disappear into a no-law zone under Geneva, whatever David Addington may prefer to think.

The memo isn't the be-all and end-all, but it's not nothing either.

CharleyCarp, I would hope that you're right, but I fear that you're wrong. I would very much like to be mistaken on that ....

I'm less optimistic than hil and Charley but less pessimistic than Lederman.

time will tell, I guess.

also, Seb, whether or not CA 3 applies to everyone has no bearing on whether say, Afghan civilians get protected under Convention 4, or Taliban conscripts ought to be protected under Convention 3.

The decision not to hold Article 5 hearings was a disaster. Even if the admin. were right that literally no one in Afghanistan was a POW, which they weren't, in practice Article 5 hearings were the way of screening out civilians; that was one of their main functions.

I will have more on all this, eventually, I'm just extremely busy right now.

"also, Seb, whether or not CA 3 applies to everyone has no bearing on whether say, Afghan civilians get protected under Convention 4, or Taliban conscripts ought to be protected under Convention 3."

Yes. But I said that didn't I?

Sebastian, I think I've now linked twice to the Geneva Conventions, asking you to show me the clause that says "unlawful combatants". But I have also been through the Geneva Conventions myself, and there isn't one. When you claim there is, you're making it up. Please stop making stuff up about what the Geneva Conventions say in debates on the Geneva Conventions.

Katherine, I just think moving the debate from 'does CA3 apply' to 'does this practice comply with CA3' fundamentally changes the landscape. For one thing, Europeans become real parties in interest. For another, the standards set by the government really will be applicable to you and me, should we ever be kidnapped by some foreign government. This is no longer a discussion of 'what can we do, after Sept 11, to an Islamofascist terrorist dog?' but 'what can any government do to a civilian, any time, for the rest of all time?'

That's a conversation I don't mind having. And I think the government's going to find itself pretty far out of step with everyone else as this conversation progresses.

Gary, Supreme Court decisions only settle questions when the conservative side wins. You can complain about the holding of Roe 30+ years on, and no one says anything. Complain about Bush v. Gore, even a month later, and it's 'quit being shrill' and 'get over it already.'

And I think the government's going to find itself pretty far out of step with everyone else as this conversation progresses.

Useless to speculate, but (1) the Bushistas have never really cared about that, and (2) the Republicans in Congress are shortsighted enough not to care what damage they do.

I will not be surprised at all to see CA3 stricken from the War Crimes Act, or (suspected) terrorists expressly excluded from CA3, under this Congress. I mean, the Senate is about to confirm William Haynes--enough said.

Jesurgislac,

Sebastian, I think I've now linked twice to the Geneva Conventions, asking you to show me the clause that says "unlawful combatants". But I have also been through the Geneva Conventions myself, and there isn't one. When you claim there is, you're making it up. Please stop making stuff up about what the Geneva Conventions say in debates on the Geneva Conventions.

I am really tempted to go off on you for your utterly typical rudeness, but instead I will merely quote my response last time you slurred me on this point since you apparently didn't even bother to follow the link I provided.

Look it up in the IRC commentaries. Or read this by Derek Jinks with whom I disagree on the topic of what the international law ought to look like but he describes the fact of unlawful combatant status and its history fairly well. (He gets bogged down in what he sees/hopes the trajectory of international law is at times).

The concept of unlawful combatant is a part of how Geneva Convention law plays out. Your ignorance of it does not cause the idea to vanish. You could argue, like Jinks, that the concept is not an ideal way to deal with the issues presented in the Geneva Conventions. You could argue that it is 'outmoded'. But the idea of distinction between lawful and unlawful combatants is in fact one of the key distinctions currently in use in the Geneva conventions, is a key distinction made when they were created, and was a key distinction in the Hague Agreements which were the direct predecessor and a huge influence on the Geneva conventions.

Please bother to investigate the topic before you accuse me of making stuff up.

So much for "DoD Detainees Get Article 3 Protections"--as Marty Lederman explains, Bush is working to get that pesky Article 3 removed from the United States Code.

Just thought Article 5 of the GC was worth posting:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Sebastian: I am really tempted to go off on you for your utterly typical rudeness

If you had, I would have been really tempted to point out to you that someone who thinks that criminally abusive hate mail is appropriate behavior hardly has the right to tell other people off for being rude when they have to ask you the same question three times over and the third time is rather brusque. So, it's just as well you restrained yourself, isn't it?

That said, I apologize for not noticing your response to me in one of the earlier threads: I didn't "not bother to respond" - I just didn't see your comment, though I'd gone back to both threads several times since I queried.

Your link doesn't actually answer the question, though. You implicitly acknowledge that the Geneva Conventions do not, in fact, make any reference to unlawful combatants, and your general reference here to "the commentaries" is no more helpful, without a link to whichever commentary you are thinking of. (There are a hell of a lot of commentaries on the various Conventions.) The paper you link to, however, makes clear that Henry Jinks accepts that the status of "unlawful combatant" exists as a fact (as it surely does) while clarifying, as I thought, that in fact the Conventions do not refer to "unlawful combatants", but distinguish between "combatants" and "non-combatants", "soldiers" and "civilians".

"as I thought, that in fact the Conventions do not refer to "unlawful combatants", but distinguish between "combatants" and "non-combatants", "soldiers" and "civilians"."

No. The Conventions do not use the title "unlawful combatant" to describe those combatants who do are not protected by the POW rules. But that is nevertheless what they are called. The history of why they are called "unlawful combatants" is easy to research. The main effect of the term was to avoid treatment of such people as "spies and saboteurs". If you would like to agrue that Al Qaeda is better thought of as "spies and saboteurs" and ought to be treated as such, I might be amenable.

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