Pentagon to Apply CA3
As Marty Lederman predicted, those memos are being written. The FT is reporting that in the wake of Hamdan, the Pentagon has deemed Common Article 3 to apply to all detainees in U.S. custody. The timing is key, as it should signal to Congress that the Administration isn’t interested in legislation overriding US obligations under the Geneva Conventions.
In the lead-up to this week’s hearings on military tribunals, starting today at the Senate Judiciary Committee, here’s a sampling of editorial opinion. The Washington Post, which has been relatively centrist on detainee issues, suggests tweaking the military code of justice to apply to terror suspects, for instance with respect to the use of highly classified information. Scott Silliman, who will be testifying today, argues that court martials are the way to go. That doesn’t seem likely, given the dignity it would be perceived as extending to the detainees. Even less likely to be adopted is David Scheffer’s well-argued recommendation that detainees be extended full POW status (something of course that Hamdan doesn’t even really hint at). David Ignatius has a useful column suggesting a multilateral approach to revising the laws of war to account for the new challenges of terrorism. Finally, in the LA Times, Jonah Goldberg brings down Hamdan and Superman together, as insidious examples of creeping cosmopolitanism.
Update: Marty has a typically incisive instant analysis over at Balkinization, including a copy of the DoD memo and a letter from Jack Goldsmith, James Comey, Larry Thompson, and Patrick Philbin in support of the Haynes nomination.