Common Article 3 (was: Constitutionally Authorized Genocide)

[Lynne Henderson]

Marty--How does asserting Common Article 3 doesn't apply differ in  
substance from saying "we have the right to ignore it/violate it?"
As for the McCain amendment, the President's signing statement also  
reserved to him the judgment on whether to honor it or not.
Finally, as for the concerns you mention about whether certain  
interrogation practices would violate CA3 or the prohibition against  
cruel, inhumane, and degrading treatment, I think it is straining at  
gnats.  Or perhaps making arguments against straw men.  (although it is  
true that prolonged solitary confinement can lead to mental breakdowns,  
which of course then ruins the person for interrogative purposes  
anyway)
The irony here is that the Field Manual at least in theory precluded  
what the administration wants to do, hence the revisions.
Lynne Henderson
PS  David's article with Prof. Jinks is an excellent resource for those  
interested in these topics.
On Jun 5, 2006, at 1:46 PM, marty.lederman at comcast.net wrote:

> My understanding is that, in this context at least, the Administration  
> is not asserting the right to violate Common Article 3, or any other  
> treaty provision.  Instead, their position is that there are some  
> military interrogations to which Common Article 3 does not apply,  
> including, in particular, those that occur in a conflict with an  
> international terrorist organization such as Al Qaeda, because (in the  
> Administration's view --adopted by the DC Circuit in Hamdan) such a  
> conflict is "of an international character."
>  
> Thus, the real internal debate, as David suggests, is about the laws  
> of war, rather than about treaty compliance.  As far as I know,  
> the Pentagon's official policy for more than 50 years was to implement  
> the substantive requirements of Common Article 3 in all conflicts, on  
> the theory that those requirements reflected CIL (the laws of war),  
> even in cases where they might not apply as a matter of treaty.  The  
> President's February 7, 2002 directive shattered this long-established  
> practice, by directing the Armed Services 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."
>  
> I've written a bit more about this here:
>  
> http://balkin.blogspot.com/2005/07/importance-of-geneva-common- 
> article-3.html
>  
> and here:
>  
> http://balkin.blogspot.com/2005/11/battle-royale-at-pentagon-david.html
> . 
> What's especially odd in the current setting, of course, is that there  
> is now a statute -- the McCain Amendment -- that prohibits cruel,  
> inhuman and degrading treatment across the board.  I would be very  
> surprised if the revised Field Manual does not reflect the McCain  
> requirements.  So what's the dispute about?  I think it's that the  
> Administration is construing the McCain Amendment, which incorporates  
> due process "shocks the conscience" standard, very narrowly --  
> something that could not be done if the Field Manual were to expressly  
> incorporate by reference, or to quote directly, Common Article 3.  As  
> the LA Times article notes, the old version of the U.S. directive on  
> detainees says the military will "comply with the principles, spirit  
> and intent" of the Geneva Convention.  That goes well beyond McCain,  
> in the Administration's view.  Here's the key passage from the LA  
> Times article:
>  
> "Another defense official said that Article 3 prohibitions against  
> 'outrages upon personal dignity, in particular humiliating and  
> degrading treatment' could be interpreted as banning well-honed  
> interrogation techniques.
>
> Many intelligence soldiers consider questioning the manhood of male  
> prisoners to be an effective and humane technique. Suggesting to a  
> suspected insurgent that he is 'not man enough' to have set an  
> improvised explosive device sometimes elicits a full description of  
> how they emplaced the bomb, soldiers say.
>
> The Pentagon worries that if Article 3 were incorporated in the  
> directive, detainees could use it to argue in U.S. courts that such  
> techniques violate their personal dignity.
>
> 'Who is to say what is humiliating for Sheikh Abdullah or Sheikh  
> Muhammad?' the second official asked. 'If you punch the buttons of a  
> Muslim male, are you at odds with the Geneva Convention?'
>
> Military officials also worry that following Article 3 could! force  
> them to end the practice of segregating prisoners. The military says  
> that there is nothing inhumane about putting detainees in solitary  
> confinement, and that it allows inmates to be questioned without  
> coordinating their stories with others.
>
> Human rights groups have their doubts, saying that isolating people  
> for months at a time leads to mental breakdowns."
>  
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