The Ballad of Common Article 3

by Duncan Hollis

Who knew that a single treaty-provision could get so much attention? Well, post-Hamdan, we’ve certainly seen a lot of discussion of whether the Supreme Court was correct to view Common Article 3 of the 1949 Geneva Conventions as applicable to the President’s military commissions. And, the debate continues as Congress weighs whether and how to accept the Supreme Court’s invitation to clarify its own views on what authority the President should have in the so-called war on terror. Yesterday, saw interesting testimony in the Senate Armed Services Committee from the Acting Assistant Attorney General for the Office of Legal Counsel and the Attorney General himself, both of whom, it would be fair to say, are not fans of Common Article 3. Marty Lederman has the details (and some great analysis) over at Balkinization. Defense Secretary Rumsfeld is testifying today before the Committee. So, it will be interesting to see if he wants to (or, more likely, is asked to) add his voice to the debate as well.

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