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Bar News - September 8, 2006

Detainee Treatment Rules Protect Our Soldiers


The last few weeks have been turbulent ones for those of us who have

John D. Hutson

been involved in the issue of treatment of detainees. First, Congress passed the Detainee Treatment Act (DAT)—sometimes referred to as the “McCain” Amendment—which reiterated long-standing U.S. policy that detainees would not be tortured or otherwise abused. This, however, was accompanied by the so-called Graham-Levin Amendment which purported to strip the courts of habeas corpus jurisdiction over detainees so they have no venue to complain. Then followed, of course, the infamous signing statement by which the President of the United States eviscerated the DAT by saying that it didn’t apply in cases of “military necessity.” (I hear the sound of a truck lumbering through a loophole.)


The Supreme Court then issued its clarion opinion in Hamdan v. Rumsfeld. In a nutshell, the Court ruled that the President’s actions in creating the military commissions to try detainees was beyond his inherent authority as commander-in-chief in wartime, as well as beyond the authority Congress gave him either in the Uniform Code of Military Justice (UCMJ) or in the Authorization to Use Military Force enacted in the immediate wake of the 9/11 attacks.


Another part of the Hamdan opinion was equally important. In spite of the long-standing position of the administration that the Geneva Conventions don’t apply to the “war on terror,” and specifically Common Article 3 (so-called because it is found in all four Geneva Conventions), the Supreme Court unequivocally kicked that argument straight to the curb. The Court said that yes, indeed, Common Article 3 applies.


Common Article 3, by its terms, applies: “In the case of armed conflict not of an international nature occurring in the territory of one of the High Contracting Parties….” By its holding, the Supreme Court said the war on terror in Afghanistan qualifies, at least with regard to these defendants.


The relevant portion of Common Article 3 for purposes of military commissions requires that such bodies be “…a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” This is a provision we should not avoid, but embrace and shout from the rooftops.


Interestingly, the portion just quoted is part (d) of Common Article 3. Parts (a), (b), and (c) prohibit, among other things, “(a)...cruel treatment and torture;” and “(c) outrages upon personal dignity, in particular, humiliating and degrading treatment.” Part (b) relates to taking of hostages, which has not been an issue thus far.


Logically and legally, if (d) applies, so too do (a) and (c). By most people’s standards, some of what we have seen in pictures and heard in news reports coming out of Iraq would qualify as outrageous, humiliating and degrading and, therefore, in violation of Common Article 3.


Shortly after the Hamdan decision was issued, Deputy Secretary of Defense Gordon England issued a memo in which he acknowledged the Court’s holding regarding Common Article 3 and directed that all Department of Defense personnel adhere to the Common Article 3 standards.


This was a hugely positive development for our reputation at home and abroad in the sense that we regained the high ground and got back in compliance with international norms. What’s the downside to this?


Some have argued that this would create liability for war crimes under domestic legislation, the War Crimes Act. That Act, passed in 1992, makes it a war crime to commit a “grave breach” of the Geneva Conventions including violations of Common Article 3. The Administration wants to amend the War Crimes Act to eliminate “degrading and humiliating” treatment from its restrictions. Moreover, the Administration wants to make the changes retroactive to protect those who have already engaged in such abuse. Basically, what we saw that happened at Abu Ghraib would now be permitted.


In the future, the United States will increasingly rely on coalition partners to help fight our wars. We won’t be able to build those coalitions if our potential partners cannot rely on us to comply with our treaty obligations and fight according to generally accepted rules. Moreover, in the long run, it will be our troops who are forward-deployed, as they are now, and will derive the benefit of our strict adherence to the Geneva Conventions. That will enable us to complain when other countries, our enemies, are tempted to skirt them. It also protects contractors, CIA, media, and others who may find themselves in harm’s way in the future.

Soldiers shouldn’t have to guess what the rules are or try to divine them based on who is being court-martialed and for what reasons. War is tough enough anyway. The rules for it ought to be as clear as they can possibly be. Adherence to the Geneva Conventions, including Common Article 3, ensures that clarity.


Finally, Congress needs to address the issue of Military Commissions. They can easily, and I mean easily, use the UCMJ, which is the envy of the world and has passed Supreme Court scrutiny, as the model for the “regularly constituted” court. There may need to be some modifications to the rules of evidence which are necessary to accommodate the nature of a “war on terror,” such as hearsay and chain of custody, but those modifications should be specific and narrow. Even then the evidence should be apparently authentic and corroborated by other evidence. Coerced testimony should be strictly prohibited, as it is inherently unreliable.


Contrary to what we hear from the far right, this would not give detainees the same rights that our troops have, nor would it interfere with the war effort. It would afford detainees the “judicial guarantees considered to be indispensable by all civilized peoples” as required by Common Article 3.


The current proposal from the Administration is simply a rehash of the old military order which created the commissions that the Supreme Court so correctly and unequivocally shot down.


For too long the prosecution of the “war on terror” has been a conversation between the Administration and the courts. Hamdan stands for the proposition that Congress needs to be engaged. If the United States Congress willingly and thoughtfully accepts the responsibility given to it by the Court, it will be a great boon to the country and to the successful prosecution of the war on terror.


John D. Hutson is dean and president of Franklin Pierce Law Center and is a retired Rear Admiral and the former Chief Advocate General of the U.S. Navy.


Editor’s Note: Hutson was scheduled to testify on Sept. 6 in Washington, D.C., at a hearing before eight judges from around the world conducting an inquiry on counter-terrorism and human rights, including the US response to the threat of terrorism since the attacks of Sept. 11, 2001.



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