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Print This PagePentagon Says Guantanamo Complies with Geneva Article III – Will Obama Disagree?
It turns out conditions at the U.S. detention center in Guantanamo Bay do not violate U.S. obligations under Common Article III of the Geneva Conventions. So says a review of the detention center by the Pentagon that was ordered by President Obama.
A Pentagon review of conditions in the Guantanamo Bay military prison has concluded that the treatment of detainees meets the requirements of the Geneva Convention but that prisoners in the highest-security camps should be allowed more religious and social interaction with one another, according to a government official who has read the 85-page document.
Frankly, this report and its conclusion should not shock anyone but the most paranoid critics of the prior Administration. The U.S. government has accepted, since at least the summer of 2006, that it is bound by Common Article III in its dealings with Al Qaeda. Congress never really expressly overruled that interpretation of the U.S. Supreme Court, although it did try to remove judicial review. So unless you believe the evil Bush Administration simply ignored its own statements about its legal obligations, Guantanamo had to be run consistent with Geneva III for the past three years.
Of course, one might disagree with the Pentagon’s interpretation of its Geneva III obligations. Indeed, President Obama might very well disagree. But to do so, President Obama will have to overrule Pentagon bureaucrats and law of war experts. He can no longer blame this “erroneous legal interpretation” on former President Bush and former Vice-President Cheney, who had no ability to influence this report.
Does this affect the decision to close Guantanamo? Probably not. But if confirms that the plan for closure is really a political necessity, and not a legal one. Obama is committed to close Guantanamo, whether or not the conditions at Guantanamo are all that bad and whether or not the detention center violates international law. The hard part, of course, is figuring out what to do with everyone there.
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But the real issue is that Geneva Common Article 3 (CA3) is NOT the right standard. CA3 was adopted by the Supreme Court in Hamdan as the minimum standard that must apply to U.S. conduct in the so-called “war on terror” because even it was sufficient to establish that the military commissions failed legal muster. But the Court explicitly left unanswered the more relevant question of whether a higher standard might apply, such as the full Conventions because it was unnecessary to the issue before it.
Of course Guantanamo can now be said to pass CA3 muster — because that article doesn’t contain any meaningful specifics by which to judge detention conditions. CA3 is intended to apply to non-international armed conflict, defined by the Geneva Conventions as conflict taking place within the territory of a single state party to the conventions. In such a conflict it is assumed that the government’s opponents owe that government a duty of loyalty which they breach by merely engaging in hostilities. They are, in effect traitors, entitled to nothing more than fair treatment as criminals. So of course a Guantanamo detention facility based on modern U.S. prison facilities can be said to pass muster under CA3.
It is essential to understand that neither CA3, or more broadly, the law of war/international humanitarian law governing non-international armed conflict, provides no legal detention authority. That must be sourced in domestic law in a non-international armed conflict, as must any specific measures governing the treatment of the detainees.
But Guantanamo is not specificallly authorized, or governed, by any specific U.S. law. The government has justified it as a “fundamental incident” of the armed conflict Congress authorized in the Sept. 2001 AUMF. That is to say, the government is relying on the international law of war, not domestic law, for the detention authority. Whether the Geneva Conventions apply or not, in relying on international law authority as the justification for detention, the U.S. government must also comply with the at least the customary international law standards for conducting that detention — e.g., comunal camp conditions, NOT prisons, mandated by the law of war since the mid 1800s. Guantanamo can fully comply with CA3 and still constitute a violation of international law. The Walsh inquiry is simply asking the wrong question, and thus will not be worth the paper it is to be printed on as far as answering the real question as to whether Guantanamo complies with the minimum standards required by international law.
at 1:01 am EST Dave Glazier
What Dave said, and…
Let’s see the actual report.
at 10:07 am EST Charles Gittings
Dave, Could you clarify your argument for me? I think I read you to say that there must be some domestic law to authorize detentions in an “non international armed conflict.” Otherwise, as I understand your argument, the detention is only authorized by the law of war, which you argue doesn’t authorize the detentions.
If that is right, then isn’t the Military Commissions Act of 2006 good enough authority for the detentions?
at 10:38 pm EST Julian Ku
I think it is important to note that Dave mis-states the legal standard. The legal standard is not whether the laws of war provide legal authority for detention. Rather, the question is whether they prohibit detention. See Lotus.
at 5:07 pm EST The NewStream Dream
Julian – My argument is fundamentally that the international law standards by which detention is to be judged are inextricably tied to the legal foundation for that detention.
IF the detention is sourced in law governing international armed conflict, then compliance with Common Article 3 (CA3) is insufficient. The limited protections contained in that article apply only to cases of non-international armed conflict (NIAC), which both historical practice and the explicit wording of CA3 limit to conflict taking place within the territory of a single nation. Equally important, NIAC provides no authority for detentions, which much be sourced in national domestic (normally criminal) law.
I don’t think the Military Commissions Act (MCA) can fairly be read as supplying such authority. First, as the name clearly indicates, the MCA is focused on providing explicit procedures for trials by military commissions, responding to the Supreme Court’s holding in Hamdan that congressional authorization for the commissions did not authorize the trials as they were being conducted at the time. I can’t find any language in the law that seems on point with respect to detention without really requiring a huge leap from the existing text. Moreover, the MCA was enacted in late 2006, five full years after detentions began. If it was the source of detention authorization it would be tantamount to admitting that they lacked valid legal foundation for the first five years of the conflict. But also note the MCA’s treatment of criminal offenses. The MCA clearly states (see 10 U.S.C. sec. 950p) that it does not create any new offenses, it simply codifies existing law of war authority. This is necessary to keep it from being an ex post facto crime creation which would logically bar its application to persons whose crimes (if any) would have had to be carried out years before its enactment. The MCA is thus explicitly implementing measures from the law governing international armed conflict. To mu thinking it would be quite illogical for a statue implementing provisions from the law governing international armed conflict to also be authorizing detention as a matter of domestic law under a NIAC scheme.
I hope this helps clarify my position.
The NewStream Dream – I’m afraid I don’t fully understand the point of your comment. I’d be happy to respond if you would amplify your critique a bit.
at 5:18 pm EST Dave Glazier
Julian and Dave,
On the detention issue, I believe the domestic legal authority for the detention is a domestic, federal common law of war. As I argue in a soon-to-be published article (in the Journal of International Criminal Justice), this common law is the source of our original incorporation and implementation of the law of war under the law of nations in the U.S. (as evidenced in the Lieber Code and Winthrop’s commentary). It is also what underlies at least some of the offenses in the MCA.
Thus, to me, the focus on positively-enacted international or domestic law completely misunderstands our legal history and traditions in this area. This federal common law has been preserved in the UCMJ (and should have been considered by the OLC rather than focusing solely on the War Crimes Act). It has been recognized by the Supreme Court in Quirin and Yamashita, among other cases. It also has not been superseded by domestic legislation or conventional IHL, though I wish to do more research and theoretical work on this.
By the way Dave…in the follow-on article to this one I have just mentioned (which discusses the propriety of applying this domestic common law to conduct in an extraterritorial armed conflict under both domestic and itnernational law), I cite your military commissions article a fair amount. If you are interested in reviewing the next article before I submit it, please send me a note. I could use all the feedback I can get.
NewStream, I think you are correct that Lotus could get you to detention as a matter of international law. However, I would go even further and argue that the simple power to detain an adversary is a fundamental incident of armed conflict under CIL. Its propriety was so evident to the drafters of the GCs that they felt that there was no need to expressly mention it. It is not mentioned in CA3 and I believe is only implicit in the full text of the GPW. Again, for our continental, civil law tradition friends in Europe, they might need positive municipal law to implement such CIL in their domestic law. Those nations operating in the English common law tradition do not necessarily need a positive law to implement CIL (or treaty provisions that reflect or have become CIL).
Best to all….
at 9:02 am EST John C. Dehn