Steve Vladeck

Victor Hansen

Ground Rules

  • Comments
    We welcome comments, whether favorable or critical, but we will edit or delete comments that are offensive, obnoxious, lacking in reasoning, or spam.
  • No Legal Advice
    Nothing that we write should be construed as legal advice, and under no circumstances should you expect that an attorney-client relationship exists between you and us.
  • Personal Views
    The views expressed in any individual blog post belong to the particular author, and should not be imputed to any other author, Wake Forest University, the University of Iowa, or the University of Miami.

« Compromise on Common Article 3 legislation | Main | The Other Half of the White House-SASC Agreement »

September 21, 2006


Is this anything but the White House's original legislation, tacking on McCain's provision at the end as a sort of condolence prize? In any case, it isn't immediately clear to me what exactly the final provision is for. How does it interact with the GC language? And is there even any vehicle for a prisoner who claims such a violation to vindicate her rights?

As the NY Times writes, "[u]nder the deal, President Bush dropped his demand that Congress redefine the nation’s obligations under the Geneva Conventions . . . ." Um, yes, because apparently the President himself can now do so--why deal with Congress at all?


Is there a link to the entire compromise legislation?


Thanks for an interesting analysis.


Seems to me that Mr Hadley was being rather disingenuous when he complained about CA3 not being "specific". The language in the .pdf you linked to seems just as vague; for example, what, does definition D on page 4 mean? Someone still has to decide if a given act constitutes "extreme physical pain" or "substantial risk of death".

And to think that it would be the US, which played a leading role in the Nuremburg trials, that prohibits invocation of CA3. Ben Ferencz must be very troubled by this development.

I'm no lawyer, but I think it will be a very sad day if this becomes law. As far as I can tell, this proposal is nothing to be proud of. Anyone disagree?

What intrigues me is Bush's relentlessness in bullying the House to get this far. He must have some pretty serious motivation.


Excellent analysis - thank you for the link to the negotiated agreement, and for your thoughtful comments. I ran into your site via balkin, and have added "natseclaw" to my short list of places to check regularly.

I haven't learned how to use trackback/backlink facilities. Aaargh. But have linked from my (rarely visited) blog to this post of yours.

I think the specificity in interrogation limits sought by the administration is expressed in 18 USC 2340(2) and 18 USC 1365 (which is the eventual endpoint from 18 USC 113). Those references remain in the negotiated language. Those references were absent from Warner's S.3901.

James Magid

Thank you for taking the time to do an analysis of this. Very Very interesting. I also think that the portion prohibiting foreign or int'l law as being a "basis" for a rule or decision. Do you think that this is just acknowledging that the GC are not self-executing or that it is an attempt to prohibit a court from citing int'l or foreign law at all in its decision?


A couple things:
Does section 8(3)(A) mean that the President has the authority to interpret the GC only "for violations of treaty obligations which are not grave breaches" of the GC, or wholesale authority to interpret them? The wording is vague, to my eye.

Secondly, it seems that some of the techniques, waterboarding specifically, would no longer be allowed (but prior use of this technique would be exempted from the retroactive application of the law). Correct me if I'm wrong, but 18 USC 2441(d)(2)(A) specifically says that "severe mental pain or suffering" is defined under 18 USC 2340(2), to wit:

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

Doesn't waterboarding violate 18 USC 2440(2)(C)?


By my interpretation, waterboarding does NOT violate 18 USC 2340(2)(C) unless there is prolonged mental harm as a result. The difference between mental pain and suffering (which is meant to be inflicted) and the "severe" version is the durability of the duress. The word "prolonged" is there for a reason.

geoffrey corn

Is it actually possible to have a "grave" breach of common article 3? I don't think so, at least not in the legal sense. It therefore seems that modification to the WCA that reduces the scope of criminal liability for violations of common article 3 simply cannot implicate "prosecutre or extradite" obligations for grave breaches.

A grave breach requires the violation to be committed against a "person or property" protected by the Convention. Each Conventions defines who/what is "protected". These definitions always require one common element: international armed conflict pursuant to the meaning of common article 2. Perhaps it was simplistic, but when I used to teach the GC's at the JAG School I used to emphasize that you can't "reach" the articles defining who/what is "protected" without first passing through the conduit of common article 2. Common article 3 can't get you there, because common article 3 is not a conduit to application of any other articles of the Convention!

This was a key aspect of the Tadic decision by the ICTY. Part of that case included a determination that the allegations that Tadic committed "grave breaches" were invalid because it was impossible to commit a grave breach during a non-international armed conflict.

While connecting this term to violations of common article 3 is obviously intended to suggest that such violations fall into the "grave" and "simple" categories, it does not reflect the precision of the Conventions. And, while there are certainly plenty of reasons to object to the narrowing of WCA criminal liability for violations of common article 3, I don't think violation of Article 129 of the GPW is one of them.


One of possible three differing versions of the complete Senate bill is posted at ...


Two problems with:

(2) RETROACTIVE APPLICABILITY.—The amendments made by this section, except
as specified in paragraph 2441(d)(2)(E) of title 10, United States Code, shall take effect as of November 26, 1997 ..

#1) "title 10 USC" should read "title 18 USC as amended herein"

#2) US Constitution Article 1 Section 9 Clause 3 Limits on Congress:
"No Bill of Attainder or ex post facto Law shall be passed."

How do they intend get around that? Clearly they want their redefinition of War Crimes to be retroactive. Their redefinition allows treatment much harsher than Common Article 3, precisely the kinds of treatment that we've all seen in photographs and read about in the world press - stress positions, humiliation, forced masturbation, sleep deprivation, extremes of heat and cold, loud noise, strobe lights, sensory deprivation, and now (read the amendments!) includes injuries that only leave "cuts, abrasions or bruises" ..


What intrigues me is Bush's relentlessness in bullying the House to get this far. He must have some pretty serious motivation.

Yeah, like "staying out of prison."

The comments to this entry are closed.