Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva

Marty Lederman

I hope that that headline is a gross exaggeration, but based on a few quick seconds perusing the "compromise" on Common Article 3, I'm afraid it's not. [The Administration appears to agree. Stephen Hadley was crowing to reporters within minutes that the bill would authorize the CIA "program" to "go forward." And a "senior administration official" -- apparently Dan Bartlett -- told the Washington Post "that Bush essentially got what he asked for in a different formulation that allows both sides to maintain their concerns were addressed. 'We kind of take the scenic route, but we get there,' the official said."] [NOTE: I will be updating this post as we learn more, and if I have any time to parse the language more closely. I would dearly love if my initial impression -- and Hadley's -- is proven to be dead wrong. So I sincerely invite folks from the Senate staffs and elsewhere to write in with comments and corrections. The fine and careful folks over at Human Rights First are painting it as a significant victory for McCain, going so far as to argue that "the language in today’s agreement makes clear that ‘alternative interrogation procedures’ such as stress positions, induced hypothermia and waterboarding are not only prohibited by the treaty, they are war crimes." I would really like this to be true. But, as of now, at least, I don't quite see it. And, what's far more important, obviously the Administration doesn't see it that way, either. Am I missing something obvious? Which provisions of the new WCA, exactly, would prohibit stress positions and induced hypothermia -- not to mention sleep deprivation and threats?]



[P.S. Thanks to Bobby Chesney for the clean link. And here is a link to the Agreements on Classified Information, Self Incrimination and Coercion, and Hearsay, in military commission trials.]



Language below. It's not subtle at all [UPDATE: The way in which the bill excludes the CIA techniques from "cruel treatment" is rather subtle, and important: I discuss it here]. It only takes 30 seconds or so to see that the Senators have capitulated entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States," except that the bill itself would define certain "grave breaches" of Common Article 3 to be war crimes. Some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at OLC -- you know, those who concluded that waterboarding is not torture -- will come up with something. After all, the Administration is already on record as saying that the CIA "program" can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.



[UPDATE: As I explain here, on closer inspection the more serious problem is not so much the delegation of some unreviewable interpretive authority to the President (troubling though that is), but instead that the legislation itself would define "cruel treatment" far too narrowly, so as apparently to exclude the CIA's "alternative" techniques, no matter how cruel they are in fact. I hear word that Senator McCain thinks the bill's definition of "grave breaches" of Common Article 3 covers the "alternative" CIA techniques. I hope he can make that interpretation stick somehow, but on my quick [first two] readings of the language, it still seems to me as if it's carefully crafted to exclude the CIA techniques. See, most importantly, the limiting language defining "serious physical pain or suffering," which is carefully drafted to exclude the CIA techniques such as Cold Cell and Long Time Standing.]



And then, for good measure -- and this is perhaps the worst part of the bill, for purposes going far beyond the questions of torture and interrogation -- section 7 would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories." [UPDATE: I've heard some people argue that this language would retain the power of courts to construe Geneva in a criminal proceeding. That remains to be seen (the language is not clear). But even if that's so, it's not at all obvious how or why the question of the meaning and application of Common Article 3 would ever be one that a court would have occasion to resolve in a criminal proceeding.]



If I'm right, and if this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.



[UPDATE: In the post above, I tentatively conclude that what's most alarming and radical about the "compromise" is the statutory definition of "cruel treatment," and the foreclosure of both judicial review and any judicial consideration of any question dealing with Geneva interpretation.]



See





Here's the language:



AGREEMENT UPON COMMON ARTICLE 3



SEC. 7. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN CLAIMS.



(a) IN GENERAL. No person may invoke the Geneva Conventions or

any protocols thereto in any habeas or civil action or proceeding to

which the United States, or a current or former officer, employee,

member of the Armed Forces, or other agent of the United States, is a

partyas a source of rights, in any court of the United States or its

States or territories.



(b) GENEVA CONVENTIONS DEFINED. In this section, the term "Geneva

Conventions" means



(1) the Convention for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field, done at Geneva August 12,

1949 (6 UST 3217);



(2) the Convention for the Amelioration of the Condition of the

Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done

at Geneva August 12, 1949 (6 UST 3217);



(3) the Convention Relative to the Treatment of Prisoners of War,

done at Geneva August 12, 1949 (6 UST 3316); and



(4) the Convention Relative to the Protection of Civilian Persons

in Time of War, done at Geneva August 12, 1949 (6 UST 3516).



SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.



(a)(1) IN GENERAL. The acts enumerated in subsection 2441(d) of

title 18, United States Code, as amended by subsection (b) of this

section, and in subsection (c) of this section, constitute violations of

Common Article 3 of the Geneva Conventions prohibited by United States

law.



(2) PROHIBITION ON GRAVE BREACHES. The provisions in section 2441

of title 18, United States Code, as amended by this section, fully

satisfy the obligation under Article 129 of the Third Geneva Convention

for the United States to provide effective penal sanctions for grave

breaches which are encompassed in Common Article 3 in the context of an

armed conflict not of an international character. No foreign or

international sources of law shall supply a basis for a rule of decision

in the courts of the United States in interpreting the prohibitions

enumerated in subsection 2441(d).



(3)INTERPRETATION BY THE PRESIDENT. (A) As provided by the

Constitution and by this section, the President has the authority for the

United States to interpret the meaning and application of the Geneva

Conventions and to promulgate higher standards and administrative

regulations for violations of treaty obligations which are not grave

breaches of the Geneva Conventions.



(B) The President shall issue such interpretations by Executive

Order published in the Federal Register, and such orders shall be

authoritative (as to non-grave breach provisions) as a matter of United

States law, in the same manner as other administrative regulations.



(C) Nothing in this section shall affect the constitutional

functions and responsibilities of Congress and the judicial branch of

the United States.



(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE. (1)

Section 2441 of title 18, United States Code, is amended



(A) in subsection (c), by striking paragraph (3) and

inserting the following new paragraph (3):



(3) which constitutes a grave breach of Common Article 3 as

defined in subsection (d) when committed in the context of and in

association with an armed conflict not of an international

character; or;



(B) by adding at the end the following new subsection:



(d) COMMON ARTICLE 3 VIOLATIONS.



(1) PROHIBITED CONDUCT. In subsection (c)(3), the term

˜grave breach of Common Article 3" means any conduct (such conduct

constituting a grave breach of common Article 3 of the

international conventions does at Geneva August 12, 1949), as

follows:



(A) TORTURE. The act of a person who commits, or

conspires or attempts to commit, an act specifically

intended to inflict severe physical or mental pain or

suffering (other than pain or suffering incidental to lawful

sanctions) upon another person within his custody or

physical control for the purpose of obtaining information or

a confession, punishment, intimidation, coercion, or any

reason based on discrimination of any kind.



(B) CRUEL OR INHUMAN TREATMENT. The act of a person

who commits, or conspires or attempts to commit, an act

intended to inflict severe or serious physical or mental

pain or suffering (other than pain or suffering incidental

to lawful sanctions), including seriousphysical abuse, upon

another within his custody or control.



(C) PERFORMING BIOLOGICAL EXPERIMENTS. The act of a

person who subjects, or conspires or attempts to subject,

one or more persons within his custody or physical control

to biological experiments without a legitimate medical or

dental purpose and in so doing endangers the body or health

of such person or persons.



(D) MURDER. The act of a person who intentionally

kills, or conspires or attempts to kill, or kills whether

intentionally or unintentionally in the course of committing

any other offense under this section, one or more persons

taking no active part in the hostilities, including those

placed out of combat by sickness, wounds, detention, or any

other cause.



(E) MUTILATION OR MAIMING. The act of a person who

intentionally injures, or conspires or attempts to injure,

or injures whether intentionally or unintentionally in the

course of committing any other offense under this section,

one or more persons taking no active part in the

hostilities, including those placed out of combat by

sickness, wounds, detention, or any other cause, by

disfiguring the person or persons by any mutilation thereof

or by permanently disabling any member, limb, or organ of

his body, without any legitimate medical or dental purpose.



(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY. The

act of a person who intentionally causes, or conspires or

attempts to cause, serious bodily injury to one or more

persons, including lawful combatants, in violation of the

law of war.



(G) RAPE. The act of a person who forcibly or with

coercion or threat of force wrongfully invades, or conspires

or attempts to invade, the body of a person by penetrating,

however slightly, the anal or genital opening of the victim

with any part of the body of the accused, or with any

foreign object.



(H) SEXUAL ASSAULT OR ABUSE. The act of a person who

forcibly or with coercion or threat of force engages, or

conspires or attempts to engage, in sexual contact with one

or more persons, or causes, or conspires or attempts to

cause, one or more persons to engage in sexual contact.



(I) TAKING HOSTAGES. The act of a person who, having

knowingly seized or detained one or more persons, threatens

to kill, injure, or continue to detain such person or

persons with the intent of compelling any nation, person

other than the hostage, or group of persons to act or

refrain from acting as an explicit or implicit condition for

the safety or release of such person or persons.



(2) DEFINITIONS. In the case of an offense under subsection

(a) by reason of subsection (c)(3)



(A) the term ˜severe mental pain or suffering" shall

be applied for purposes of paragraphs (1)(A) and (1)(B) in

accordance with the meaning given that term in section

2340(2) of this title.



(B) the term ˜serious bodily injury" shall be applied

for purposes of paragraph (1)(F) in accordance with the

meaning given that term in section 113(b)(2) of this title.



(C) the term ˜sexual contact" shall be applied for

purposes of paragraph (1)(G) in accordance with the meaning

given that term in section 2246(3) of this title.



(D) the term ˜serious physical pain or suffering

means bodily injury that involves



(1) a substantial risk of death;



(2) extreme physical pain;



(3) a burn or physical disfigurement of a serious

nature, not to include cuts, abrasions, or bruises; or



(4) significant loss or impairment of the function

of a bodily member, organ, or mental faculty.



(E) the term ˜serious mental pain or suffering" shall have the same meaning as ˜severe mental pain or suffering" as such term is defined in 18 U.S.C. § 2340(2), except that the term "serious" shall replace the term "severe" where it appears in such definition, and except that, as to conduct occurring following the date of enactment of the Military Commission Act of 2006, the term "serious and non-transitory mental harm (which need not be prolonged)" shall replace the term "prolonged mental harm" in such definition.



(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK. The intent

specified for the conduct stated in subparagraphs (D), (E), and

(F) or paragraph (1) precludes the applicability of those

subparagraphs to an offense under subsection (a) by reasons of

subsection (c)(3) with respect to



(A) collateral damage; or



(B) death, damage, or injury incident to a lawful

attack.



(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER

EXCHANGE. Paragraph (1)(I) does not apply to an offense under

subsection (a) by reason of subsection (c)(3) in the case of a

prisoner exchange during wartime.



(2) RETROACTIVE APPLICABILITY. The amendments made by this

section, except as specified in paragraph 2441(d)(2)(E) of title 10,

United States Code, shall take effect as of November 26, 1997, as if

enacted immediately after the amendments made by section 583 of Public

Law 105-118 (as amended by section 4002 of Public Law 107-273).



(c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR

PUNISHMENT.



(1) IN GENERAL. No individual in the custody or under the physical

control of the United States Government, regardless of nationality or

physical location, shall be subject to cruel, inhuman, or degrading

treatment or punishment.



(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED

. The term "cruel, inhuman, or degrading treatment or punishment" in

this subsection shall mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.



(3) The President shall take action to ensure compliance with this

subsection, including through the establishment of administrative rules

and procedures.