The Gordon England Memo on Common Article 3

Jurist has a copy of the actual July 7, 2006 memorandum from Deputy Secretary of Defense Gordon England indicating that, in the aftermath of Hamdan, Common Article 3 of the Geneva Conventions “applies as a matter of law to the conflict with Al Qaeda.” The Memo goes on to indicate that although DOD understands that “aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3,” virtually all elements of the U.S. military and DoD itself are to review all the relevant rules to “ensure that all DoD personnel adhere to these standards” within the next three weeks. The memorandum then reproduces the text of Common Article 3.

The political import of the Bush Administration’s about-face on applying the Geneva Conventions is being widely discussed in the MSM (see here, here and here). I wonder though how much of an operational effect this change in policy will actually have. The memo takes the view that DoD policies are already compliant with Common Article 3 and indicates that in responding to the ordered review, a reply of “reviewed and no effect” is acceptable. Moreover, does anyone else think it’s significant that the memo says nothing about Common Article 3’s applicability to the Taliban? Does this mean that Taliban members unaffiliated with Al Qaeda remain outside Common Article 3’s scope? And while we’re reading the tea leaves, what significance, if any, do readers attach to the fact that the policy change comes from the Deputy Secretary rather than the Secretary of Defense himself?

Still, I take some personal satisfaction in seeing this change come to pass. Indeed, it goes further than the (now-public) State Department position in 2002, which focused on granting the Taliban­–not Al Qaeda–Geneva Convention protections (full disclosure: I was one of the State Department lawyers who worked on this issue in the winter of 2002). Nevertheless, despite the England memo’s focus on Al Qaeda, I still view it as a victory for people like Will Taft and other lawyers in the State Department Legal Adviser’s Office who argued that the United States could (and should) apply international law–not as an obstacle post-9/11–but as a way to support and affirm the propriety of the U.S. response to those horrific events and the threat of similar attacks in the future. So, even though the blogosphere spends so much time criticizing those in government for all that they do wrong, I think it’s worth remembering that there are many folks who’ve worked hard within the system to try and make things go right, even if it ends up taking nearly 5 years (and a big Supreme Court decision) to get there.