Aziz Huq directs the Liberty and National Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror (New Press, 2007), and recipient of a 2006 Carnegie Scholars Fellowship.
The Supreme Court’s ruling last week in Hamdan that military commissions erected at Guantánamo are inconsistent with our military law and the Geneva Conventions has already prompted fierce—and flawed—debate. One key question, especially relevant in next week’s Judiciary Committee hearings on Hamdan, is whether and how the Geneva Conventions apply to military commissions. The many factually and legally incorrect assertions clogging the air make it worth stepping back to understand what Geneva does, and why it matters for our success against the terrorist threat.
Overheated rhetoric on Geneva began within hours the court’s decision. Summing up the criticism, the Wall Street Journal argued that it was deeply improper to give terrorist suspects the same rights as American servicemen. The Journal contended that prosecutions of suspected terrorists would compromise the president’s ability to act with “speed and decisiveness.” These criticisms rest, however, on misconceptions about Geneva and ignorance about the workings of our military justice system.
The United States and other nations negotiated the Geneva Conventions in August 1949, as World War II’s aftermath smoldered around them. America’s negotiators, Raymond Yingling and Robert Ginnane, had a clear mission: To secure clear rules placing out of bounds the kind of abuse and torture American soldiers captured by Japan had suffered. The negotiators must have known of the Ofuma interrogation center, where American soldiers where were subjected to solitary confinement, blindfolding and stress positions such as the “Ofuma crunch”: an excruciatingly painful position that involves “standing on the ball of your foot, knees half bent and arms extended over the head.” The four Conventions thus contain literally hundreds of detailed provisions, not only preventing this kind of abuse, but also reaching food rationing, barracks arrangements, and even sports.
Geneva’s intricate rules, however, govern only the treatment of persons who are no longer fighting, and only in times of armed conflict. They say nothing about combat decisions: weapons used, tactics employed and strategic goals selected. Geneva focuses solely on those “hors de combat”: The wounded, captured and civilians; the shepherd who inadvertently strayed onto the battlefield. Geneva imposes no constraint on the military’s use of force, or its “speed and decisiveness,” as the Journal misleadingly suggested. It kicks in only once the fetters are securely fastened on prisoners.
Further, President Harry S. Truman signed, and the Senate ratified, the Geneva treaties knowing full well that they applied only in “armed conflicts” (including both conflicts between two states and conflicts involving only one state). The White House and the Congress entered into the treaties—and even made “grave breaches” of Geneva violations of American criminal law—knowing full well that Geneva’s restrictions applied only when American servicemen’s lives were at stake. Every time Geneva kicks in, it is because American soldiers are in the line of fire. Equally, every time American soldiers walk into battle, they know that an intricate and detailed web of legal protections shield them from abuse and ill-treatment.
But didn’t the Supreme Court hold that these detailed rules about sports and food rationing apply to alleged al-Qaida and Taliban members as well as to U.S. forces? Isn’t the Journal correct to say that American soldiers and alleged al-Qaida member captured on the Afghan battlefield are being equally ranked? Absolutely not. A captured American soldier and an alleged al-Qaida member picked up during combat are almost certainly subject to different rules and protections, and the Court’s ruling did not change that. It is the Journal’s failure to understand Geneva that fosters confusion.
Geneva protects the American soldier in two ways. First, he is entitled to “combatant immunity.” That is, he cannot be tried for his acts as a soldier, carrying and using a gun, killing others. Second, because he is a “lawful combatant” under Geneva, he benefits from more than one hundred detailed rules for the treatment of “Prisoners of War,” or POWs, that are listed in the Third Geneva Convention. These are the rules on food rations, barracks arrangements, and sports Yingling and Ginnane negotiated in 1949.
But the al-Qaida fighter likely gets neither benefit if he has not followed Geneva’s demanding rules for POW entitlement. If the al-Qaida member fails to meet these rules—and there’s a reasonable argument many of them did fail—they do not rank as POWs, and do not obtain the benefits of that status, including combatant immunity. The al-Qaida fighter, in other words, can be tried and convicted criminally as a result of his failure to follow the laws of war. Unlike the American service member, the al-Qaida fighter is not a “lawful” combatant under Geneva.
But Geneva is a comprehensive framework for everyone captured in warfare. Hence, it has a minimal baseline standard for any person captured during wartime, a baseline that precludes “[o]utrages upon personal dignity, in particular, humiliating and degrading treatment,” and also criminal trials outside of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” This is “Common Article 3.”
“Common Article 3”—so-called because it appears in each of the four Conventions—is the point beyond which no nation can go without losing its claim to dignity and honor. Geneva’s drafters (including the United States), President Truman, and the U.S. Senate concluded that the limit on torture and unfair trials formed such bare essentials.
It is solely Common Article 3 that was at issue in Hamdan. It was solely this irreducible floor that the Supreme Court found applied to military commission procedures as a matter of Congress’s command. The court simply did not hold that members of the Taliban rank automatically with U.S. soldiers, or that they benefit from “combatant immunity.”
Further, there is good cause—in strictly counter-terrorism terms—to apply Common Article 3 to alleged members of the Taliban and al-Qaida. It is generally believed around the world that many of those detained at Guantánamo are in fact innocent of all connection with either the Taliban or al-Qaida. It is hard to imagine how a trial that does not respect “the judicial guarantees which are recognized as indispensable by civilized peoples” could convince others that Guantánamo detainees are properly detained. Unfair trials will make it more difficult to win the ideological battle at the heart of counter-terrorism.
Common Article 3 is especially important now because there is real doubt about whether substantial numbers of Guantánamo detainees have any connection to al-Qaida or the Taliban. Geneva tells states to take the common-sense measures of holding swift hearings on the battlefield to distinguish combatants from those swept in accidentally. But the administration decided to forego these essential procedures “to make a point—that the president can designate them all enemy combatants if he wants to.” Congress and the American public are still slowly learning that Guantánamo detainees are in fact innocent of all conduct, that we have been frittering away our money, manpower and reputation not on the “worst of the worst,” but on shepherds and farmers because the administration declined to sort the innocent from the guilty.
In any case, we know that “military necessity” has nothing to do with resistance to Common Article 3. As Jane Mayer recently explained in the New Yorker, military lawyers were wholly excluded from the rule-making process for military commissions. One military lawyer called the commissions “a political stunt. The administration clearly didn’t know anything about military law or the laws of war.” Those who knew most about “military necessity,” in short, played no role in the decision to deviate from Common Article 3.
Adherence to Common Article 3, in line with the Supreme Court’s decision in Hamdan, is thus not the blow to counter-terrorism measures that the Journal claims. It is a necessary, eminently practical tool in a difficult, long-term battle. It is the line we cannot cross without losing our claim to moral and political leadership. And it is a standard we fall short of at our own risk.