Monday, November 28, 2005

Marty Lederman comments on detainee treatment and Common Article 3 standard

Marty Lederman was kind enough to post a thoughtful comment, including questions for me, re a couple of posts of mine addressing the standard of detainee treatment and the issue of the application of the standard of Common Article 3 of the Geneva Conventions. I'm finishing my last two days of classes and am somewhat frantic, so I'll be a little bit getting back to this, but I will - but I wanted to make Professor Lederman's comment more visible, so here it is, along with a second thoughtful comment by K. Scott:

Marty Lederman writes:

Professor Anderson:

I think it's very interesting that you've now suggested several times that "we have an obligation to establish minimum standards -- standards that can usefully draw on existing minimum standards in the laws of war, such as Common Article 3 of the Geneva Conventions," but that "those minimum standards ought to be established for the particular and specific purpose of this new kind of intelligence war."

I, too, have been trying to persuade folks that the single best, simplest solution to the torture scandal -- the best start, anyway -- would be to codify the standards of Common Article 3.

But I'm curious, then, how it is that you and I can be hinting at the same solution: How could the standards of CA3 conceivably be "modified" to have new, and special, meaning for the interrogation of international terrorism suspects? Imagine, for instance, a statute that incorporated CA3, and that thus provided that "every individual in the custody or under the physical control or effective control of the United States Government, regardless of nationality or physical location, shall in all circumstances be treated humanely, and the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; and outrages upon personal dignity, in particular humiliating and degrading treatment."

I don't see any way in which these standards could be "construed" to permit the sorts of techniques that the CIA and military have been authorized to use against Al Qaeda suspects. See, e.g.,

I, for one, think that would be a good thing.

But you appear to be suggesting that "cruel treatment," "torture," "outrages upon personal dignity," and "humiliating and degrading treatment" might take on a different, much more forgiving, hue with respect to this new category of detainees. I don't see it -- not, at least, without doing real damage to the ordinary English meanings and common understandings of these words.

Am I missing something? Or would you actually have us abandon the CA3 standards?


K. Scott writes:

Re 'insitutionalizing' the war on terror, I think your position suffers from several perspectives. There is every evidence to presume that the point of many if not most of the policy positions of the Bush Administration was to "insitutionalize" the Republican Party, as well as aggrandize Executive power, it most certainly was NOT first and foremost to proect the US. The tail has been wagging the dog for some time, you really think the Administration even wants to change now?

Secondly, you posit worse treatment for some detainees based on their asserted importance and foreign status: this without judicial oversight. There is little evidence that coercive interrogation yields good information, and much that it does not. In addition, the lack of judicial oversight would quickly enable the policy to descend to nightmare, as it has done already. Please review the documents from Gitmo if you believe otherwise. Lastly, I assume you would have no objection then to similar tactics - with no judicial oversight or any transparency - being used on US citizens abroad? Water boarding of CIA operatives perhaps? Or of Seals, or even army? It is simply insufficient in law or logic to suppose that such tactics be used only in 'opur just' cuase, but not theirs.

A common standard is needed, or the standard lowers to the lowest common denominator - that has been the lesson of history, and particularly of the last few years. Finally, changing the standard for some detainees but not all, in some instances but not all, smacks of conflating the jus ad bello and the jus ad bellum - if not directly, than very analagously. Doing so does more than simply confuse, it detroys the enitre edifice fo intrnational humantarian law. In summary, you trust this Administration too much, government too much, the torturer too much, and oddly enough for a professor of law, show entirely too little practical interst in the Rule of Law.

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