Useful blogosphere analysis of yesterday's Bush administration war on terrorism proposed legislation

(Update, September 17, 2006. I have an additional post on why and to what extent it is okay and not okay, and indeed required, for Congress to define the meanings of terms in Common Article Three, here.)

Law professors have been busily at work dissecting the Bush administration's offerings yesterday in the war on terror. Julian Ku at Opinio Juris, here, discusses Congress's power to determine what US domestic law is, even where it in effect provides interpretations of international law obligations of the US that are not what the (nebulous and let's just be honest and say European) international community's view of that is. Julian notes that this is simply the result of the last in time rule, if nothing else. Note particularly the reactions from abroad in the comments - which, while all admirably civil, range from politely puzzled to politely appalled. Marty Lederman also comments as well - but the place to go for Marty's analysis of the proposed legislation and the new army manual is over at Balkinization, here, here, and here, and I'm sure more to follow. Over at the new National Security Advisors blog, Bobby Chesney provides a very useful thumbnail guide to the proposed tribunal legislation, here.

I don't understand, really, why all the moves the White House is making now could not have and should not have been made two years ago. I don't say this, of course, as someone who believes the whole war on terror thing basically wrong, but instead as someone who thinks it instead overall right as a policy. I still don't understand why it would not have been better to have done this two years ago. All it appears to me is that it was held hostage to the executive discretion wing of the administration, to the detriment of the pursuit of the war on terror.

I also think, actually, that the administration would have done best from day one to have said

• The Geneva Conventions apply;
• The Geneva Conventions apply even to unlawful combatants, not to give you either POW status under GC III or civilian status under GC IV, but instead to give you the legal status of unlawful belligerent punishable as such and for related actions under the laws of war;
• Although not technically required under GC III, Article 5, detainees would receive a screening Article 5 hearing upon detention in accordance with 1997 DOD regulations concerning same to determine whether they were lawful combatants, civilians, civilians to be detained as security risks per GC IV, or unprivileged belligerents;
• Trials for unprivileged belligerency and related unprivileged action would taken place under rules meeting at least the minimum specified under the limited protections provided by Article 75 of Protocol I, which the United States acknowledges to be customary law - and the United States might, in its sole discretion, provide greater rights to defendants than required by Article 75, but is under no obligation to do so;
• The United States would meet, as a matter of policy but not law, the minimum obligations of Common Article 3, and would treat those as applicable to all detainees without regard to the technicalities of international versus non-international armed conflict; the United States would take the view that, as a matter of law, Common Article 3 on its own terms does not cover armed conflict taking place transnationally with non-state actors (contra Hamdan);
• The US Congress shall pass statutues defining what specific conduct, under what specific circumstances, and by what specific agents, for purposes of US law, meets or does not meet, the requirements of the abstract and not entirely self-explanatory language of Common Article 3 or, for that matter, the Torture Convention. The reason for requiring Congressional votes on specific practices is that although some may consider it facially obvious what is permitted or not permitted under CA3 or the Torture Convention, it is quite evidently not something plainly obvious to the American people. It is not something on which we have moral, political, or legal consensus. Indeed the public is deeply divided when it comes to assessing whether specific practices can ever be justified or not (as reaction to President Bush's speech yesterday indicate). In case of such deep substantive division in a democracy, I think there is no principled approach to resolve it except by democratic procedures; therefore, let the people's representatives vote, raise their hands and tell us what is okay and not okay, andunder what specific circumstances, with specificity, and without evasion or euphemism or cant;
• The US Congress shall provide by legislation that the Geneva Conventions are not self-executing;

... as a start.

In fact, I think the US government goes way overboard in creating so many concrete rights and procedures. Methinks it doth protest too much with all the procedural niceties it loads into its tribunals. But it gets itself into all this stuff because it starts from the assumption that its obligations essentially are domestic law in nature and that it must justify any departure from what would be required in a civilian trial or, alternatively, in a full blown military trial under the UCMJ. I don't think that is the starting point at all.

The starting point, on the contrary, should be the minimum required - and it is pretty minimum - under Article 75 of Protocol I, accepted by the US as customary law. It should offer to justify nothing more than that it meets the standards of Article 75 and, beyond that, anything it chooses to do is merely a gift. The "international community," so called, would whine - the human rights groups would try to commandeer the interpretation of Article 75, but no matter. Its language is pretty straightforward. It was a mistake for the administration ever to have denied the application of the Geneva Conventions, given that they lead quite directly the the minimum requirements of Article 75 - and a huge mistake to allow the debate to enter into constitutional territory that has dragged the discussion into matters about criminal law, procedure, and so on that do not fit the circumstances of the war on terror, at least insofar as they do not deal with citizens of the United States. Put that way, I suppose I might be said to be in agreement with Peter Spiro's argument about international law, in Opinio Juris, here - although I would not quarrel with Peter responding that this is the devil quoting scripture for his own purposes.

And I should add that the responsibilty for winding up in this complicated denouement lies with the Cheney wing of executive power - Addington - holding out for an interpretation of executive discretion that conspicuously fails to win over even Justice Scalia - and thus costing far more important legal arguments pertaining to the war on terror. If you think, as I do, that the war on terror is as important as the Bush administration says, as recently as yesterday, it is, then these guys have a lot to answer in losing legal battles over the nature of that war.

The central question remaining out of that is under what circumstances detainees must be released, if any. If they are tried as unlawful belligerents and found guilty, then they can be sentenced as such. But still, that leaves open other categories of people - including, at least in theory, lawful combatants who may be held until the cessation of hostilities. The point is that you can't really answer this question unless you determine what constitutes the end of a war on terror, or if it is a war in the legal sense applicable to such questions as end of hostilities.

I do not think that it is okay to simply say, there's a war on terror, it could go on forever, it is global as to space and location, it excludes nothing and nowhere - but to that we can apply detention concepts that, as a historical-legal matter (as Adam Roberts points out, never irrelevant in the legal interpretation of the laws and customs of war), are about wars at least somehow confined in time and space. There have to be some ways of placing limits on the concept of war here, at least in the legal sense as applicable to the war on terror. It's a further question as to what branch of government ought to answer that question in the American political system - I am dubious that it should be the Supreme Court - but I am equally skeptical about saying it is all executive discretion. I think, actually, that the process requires legislation to determine what the "war" means legally, including when it ends.

Perhaps this is all water under the bridge now - we have spent years elaborating an administrative tribunal process under certain assumptions that largely derive from domestic law considerations and practices. But perhaps it might still be relevant, for example, in persuading Senators McCain, Graham, and others not to pursue their own tribunal formats based around even more "domestic" law models.