A Pretense of Respect for the Geneva Conventions

Joseph M. McMillan

The supposed clarifications in the Military Commissions Act of 2006 are simply evasions of long-standing treaty obligations. In passing the MCA and signing it into law, Congress and the President have undercut our national commitment to protecting fundamental human rights.

In a speech at the White House in early September, President Bush confirmed the existence of a secret C.I.A. program for the detention and interrogation of "a small number of suspected terrorist leaders,"¹ including those believed to be the architects of the September 11th attacks. The President said that, after one such suspect stopped cooperating, the C.I.A. used "an alternative set of procedures" to extract additional information from him. Mr. Bush declined to identify the procedures used, or where this interrogation occurred. He did say, however, that the recent United States Supreme Court ruling in Hamdan v. Rumsfeld² "put in question the future of the C.I.A. program."

The President was right to be concerned about the legality of the C.I.A. program and the "black sites" where such alternative procedures are employed. In Hamdan, over vigorous opposition from the Bush Administration, the Supreme Court held that Common Article 3 of the Third Geneva Convention Relative to the Treatment of Prisoners of War,³ which provides a minimum level of protection for anyone captured during an armed conflict regardless of whether that person is entitled to full protection as a prisoner of war, applies in the war on terror. At issue in Hamdan was the Common Article 3 requirement that if detainees are tried for alleged crimes, they must be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."⁴ The Supreme Court held that the President's initial scheme for military commissions failed that test.

The President has now obtained legislative authorization for a new round of military commissions. The Military Commissions Act of 2006⁵ ("MCA") was rushed through Congress in late September just prior to Congress' recess. President Bush signed the bill into law on October 17. Though the President and Congressional leaders pay lip service to the long-established standards of the Geneva Conventions, and to American due process values, the rules of evidence and the commission procedures established by the MCA nevertheless violate Common Article 3 and offend basic notions of fundamental fairness.

President Bush's initial proposal would have permitted the military to exclude the accused from his own trial, and permitted convictions on the strength of evidence not disclosed to him.⁶ Such a scheme certainly would have denied detainees "the judicial guarantees recognized as indispensable by civilized peoples."⁷ As Brigadier General James C. Walker, Staff Judge Advocate to the Commandant of the Marine Corps, explained to the House Armed Services Committee last month: "the Judge Advocates General [have] steadfastly maintained that a system which would permit the introduction of evidence against an accused, outside of his presence, is objectionable."⁸ No civilized country would countenance such a procedure, and the Unites States should not be the first. Opposition on this point from powerful members of the Senate Armed Services Committee, including Republican Senators McCain, Graham, and Warner, forced the Bush Administration to eliminate these components of its proposal.

Unfortunately, the highly-touted compromise reached between the White House and those Republican Senators failed to address numerous grave problems with commission procedures. While the defendant's right to be present at trial has been strengthened, the measure still permits the introduction of evidence long considered untrustworthy. For example, commission rules allow for the admission of evidence obtained through "coercion"⁹ despite the longstanding recognition in American jurisprudence that such testimony is inherently unreliable.¹⁰ In addition, the MCA reverses the traditional presumption against the admissibility of hearsay evidence, placing on the party opposed to the admission of such evidence the burden of proving its unreliability.¹¹ Despite that reversal, the MCA does not provide the defendant with a fair chance to carry the burden, as the prosecution is permitted to keep sources and methods used to obtain evidence secret.¹² These problems alone are sufficient to nullify the Common Article 3 guarantee of a fair process.

Even more fundamentally, the legislation Congress sent to the President undermines the prohibition against "violence to life and person," "cruel treatment and torture," and "outrages upon personal dignity, in particular, humiliating and degrading treatment" set forth in Common Article 3.¹³ The clear implication of the Hamdan ruling is that all of these provisions must be respected. If a detainee is to be punished under the laws of war (which include the Geneva Conventions), he must be afforded their procedural protections as well. Though the President has not disclosed the nature of the "alternative procedures" to which he referred in his speech, there is evidence (including the photographs from Abu Ghraib, the statements of military interrogators, and the deaths of detainees in American custody) to suggest that the secret C.I.A. interrogation program violates the minimal standards of decency set forth in Common Article 3. Furthermore, the "alternative procedures" may also run afoul of Article 17 of the Third Geneva Convention, which provides that "No…form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever."¹⁴

In addition to authorizing military commissions that violate both international and domestic norms, the MCA amends the War Crimes Act. Prior to passage of the MCA, the War Crimes Act¹⁵ implemented the Geneva Conventions by making it a federal crime to violate any provision of Common Article 3.¹⁶ The MCA limits war crimes to a subset of Common Article 3 violations.¹⁷ Conspicuously excluded are the prohibitions against "humiliating and degrading treatment" and against trials that fail to provide essential guarantees of due process. Contrary to the views espoused by the administration, the decriminalization of such conduct - which applies retroactively to 1997 - will not assist the U.S. in its fight against terrorism. Rather, it will embarrass our allies and be trumpeted by our enemies as evidence of American hypocrisy and disregard for the rule of law, and will expose our own troops to greater risk of abuse should they fall into enemy hands. In an amicus brief filed in Hamdan, retired Generals and Admirals emphasized this point.¹⁸

Well aware of the political risk of abrogating the Geneva Conventions, Congress and the President sought political cover in the text of the legislation itself. The MCA contains recitals proclaiming that its provisions satisfy U.S. treaty obligations under Common Article 3.¹⁹ It also purports to invest the President with "the authority for the United States to interpret the meaning and application of the Geneva Conventions."²⁰ However, such proclamations invade the judicial function. As Chief Justice John Marshall said in Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is."²¹ In Federalist No. 22, Alexander Hamilton made the same point specifically with respect to treaties:

Laws are a dead letter without courts to expound their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.²²

Thus, it is outside the competence of the legislature to dictate what Common Article 3 means or requires, or to delegate such authority to the President. Nevertheless, we can expect this purported grant of authority to result in an Executive determination that aggressive interrogation procedures used at C.I.A. black sites do not constitute "humiliating and degrading treatment" within the meaning of Common Article 3. Because the MCA prohibits any person from invoking the Geneva Conventions as a source of rights enforceable in any American court,²³ it is an open question whether courts will ever rule on the effect of such an executive determination or the legality of the conduct it authorizes. These provisions make treaty-based rights a matter of Executive grace, or as Hamilton correctly observed, a dead letter.

The generation of Americans that ratified the Geneva Conventions did not think compliance with these standards overly burdensome. Indeed, the Senate Foreign Relations Committee, in recommending ratification in 1955, said:

Our Nation has everything to gain and nothing to lose by being a party to the conventions now before the Senate, and by encouraging their most widespread adoption…. The practices which they bind nations to follow impose no burden upon us that we would not voluntarily assume in a future conflict without the injunction of formal treaty obligations."²⁴

There was nothing wrong with the language of Common Article 3 in 1955, and there is nothing wrong with it now. The supposed clarifications in the MCA are simply evasions of solemn treaty obligations. The standards established in Common Article 3 are no more vague than many of the most fundamental ones in our domestic legal tradition, including "due process," "equal protection," "unreasonable search or seizure," and "cruel and unusual punishment." Courts are perfectly capable of interpreting and applying such standards, and have done so throughout our history to ensure that basic rights are protected across changing times and circumstances. The same ought to be true of Common Article 3. To paraphrase former Justice Potter Stewart, though they may not be able to precisely define humiliating and degrading treatment, courts know it when they see it. Unfortunately, in passing the MCA, Congress has undercut our national commitment to protecting basic human rights. Black sites, disappearances, and "alternative procedures" are not tools this country needs, or has ever needed, to defend its values and way of life. On the contrary, they are profoundly antithetical to our values and way of life. If we are, as the President says, "fighting for the cause of humanity," we must do so in a way that humanity can recognize and support.

* Joseph M. McMillan is a partner at Perkins Coie LLP in Seattle. He has represented Salim Ahmed Hamdan from the inception of his lawsuit in April 2004.
1 President George W. Bush, White House Speech Regarding Military Commissions (Sep. 6, 2006).
2 126 S. Ct. 2749 (2006).
3 Geneva Convention Relative to the Treatment of Prisoners of War [hereinafter Third Geneva Convention], Aug. 12, 1949, 6 U.S.T. 3316.
4 Third Geneva Convention, supra note 3.
5 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S.C.) [hereinafter "MCA"].
6 H.R.6054, 109th Cong. (2006).
7 Third Geneva Convention, supra note 3, art. 3.
8 Military Commissions and Standards Used in Trying Detainees: Hearing on H.R.6054 Before the H. Comm. on Armed Services, 109th Cong. (2006)(statement of Brigadier General James C. Walker).
9 MCA § 3(a)(1) (refer specifically to amended § 949a(b)(2)(C)).
10 See, e.g., Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2681 (2006) ("We require exclusion of coerced confessions both because we disapprove of such coercion and because such confessions tend to be unreliable."); Rochin v. People of California, 342 U.S. 165, 173 (1952) ("Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law.").
11 See MCA § 3(a)(1) (§ 949a(b)(2)(E)(ii)).
12 Id. (§ 949d(d)(2)(A)).
13 Third Geneva Convention, supra note 3, art. 3.
14 Third Geneva Convention, supra note 3, art. 17. The Bush administration has long insisted that the detainees in the war on terror are not prisoners of war ("POW") and, accordingly, would contend that Article 17 is inapposite. However, Article 5 provides that, should any doubt arise concerning a detainee's status as a POW, "such persons shall enjoy the protections of the present Convention until such time as their status has been determined by a competent tribunal." Third Geneva Convention, supra note 3, art. 5. In Hamdan, the Supreme Court did not need to reach the question of whether Article 5 conferred presumptive POW status on the defendant, and expressly reserved judgment on that issue. See Hamdan, 126 S. Ct. at 2795 n.61. The MCA makes no explicit provision for Article 5 hearings, but appears to inaccurately characterize the decisions concerning combatancy made by Combatant Status Review Tribunals ("CSRT") as POW status hearings required by Article 5. See MCA § 10.
15 18 U.S.C. § 2441 (2000).
16 Id. at § 2241(c)(3).
17 See MCA § 6(b).
18 See Brief of Retired Generals and Admirals and Milt Bearden as Amici Curiae Supporting Petitioner, Hamdan, 126 S. Ct. 2749 (No. 05-184).
19 See MCA § 6(a)(2).
20 MCA § 6(a)(3)(A).
21 5 U.S. (1 Cranch) 137, 177 (1803).
22 THE FEDERALIST No. 22, at 150 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
23 See MCA § 5(a).
24 S. Exec. Rep. No. 84-9, at 32 (1955).

Preferred Citation: Joseph M. McMillan, A Pretense of Respect for the Geneva Conventions, 1 HARV. L. POL'Y REV. (Online) (Nov 6, 2006),
http://www.hlpronline.com/2006/07/mcmillan_01.htm