Text of the CA3 Compromise

The text of the compromise reached this afternoon between the White House and Senators Warner, Graham, and McCain is available here.  Here's a brief summary:

1. Availability of the Geneva Conventions as a rule of decision:

The senators have come around to the White House position, and have agreed to preclude invocation of the GC's in any context (rather than just in the context of lawsuits for damages as in their earlier draft).  Note that this will preclude a GC-based challenge to a CSRT determination in the D.C. Circuit.  Unless the DC Circuit (and later, the SCT) determines in Boumediene / al Odah that noncitizen detainees at GTMO have constitutional rights, then, it's not clear what claims they'd have left to pursue in such a challenge (which is, in part, the point).

2. War Crimes Act amendment:

The senators have come around to the White House position on amending the War Crimes Act, more or less.  Both prior bills would amend 18 USC 2441 by replacing the blanket criminalization of CA3 violations with a list of actions that would amount to grave breaches of CA3, limiting prosecution to those grave breaches.  The agreed list of such offenses now conforms to the White House version, or so it appeared after a quick glance (please comment if you think otherwise).  Perhaps I'm reading this wrong, but I gather this would permit at least some of the more coercive CIA techniques to continue.

3. Limiting the War Crimes Act stated to be in compliance with GPW Art. 129:

This is interesting.  I noted below the possibility that someone might contend that the failure to criminalize all violations of CA3, rather than just the ones listed in the section described above, might itself be a breach of US obligations under the GCs.  The compromise language anticipates that argument, and provides that the amended list sufficiently criminalizes grave breaches of the GCs.  The relevant GPW provisions are Articles 129 and 130, which provide:

Article 129

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

Article 130

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention. "

4. No foreign or international precedent when interpreting the new WCA:

The compromise purports to forbid a reviewing court from relying on precedent from any foreign or international source to "supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions" specified in the new War Crimes Act, CA3 grave breach laundry list.   Very interesting.  Does Congress have the power to cabin a reviewing court's interpretive authority this way?  Very interesting indeed.

5. Judicial Deference to Executive Treaty Interpretations:

Speaking of cabining a court's interpretive authority...the compromise also specifies that "[a]s provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions . . . ."  Wow.  Those who are following these events closely will appreciate this one.  Post-9/11 events have shown that there are a number of critical issues under the GCs that require a bit of treaty interpretation.  In the D.C. Circuit's Hamdan opinion, the majority held that the President's resolution of these issues controls so long as it is reasonable.  The SCT majority in Hamdan implicitly rejected that view in the course of rejecting the President's CA3 interpretation on the merits, over a dissent by Thomas and Scalia decrying the majority's failure to defer (or even to mention the deference doctrine).  This section should be seen as a bid to avoid that result in future cases (interpreting, for example, Articles 4 and 5 of GPW).  Coincidentally, I literally have just finished drafting an article about this very topic , though I plainly will have to touch it up now to address this legislative development.  In any event, similar question as in #4 above: Can Congress mandate that courts defer to executive treaty interpretations?

6. Revised CID Prohibition

Interestingly, the draft concludes with what appears at first glance to be a restatement of the McCain Amendment prohibition on any US personnel engaging in cruel, inhuman, or degrading treatment of any detainee held by the US anywhere in the world.  As before, the CID standard is equated with the shocks-the-conscience (i.e., substantive due process) standard.  I may be missing a distinction between this language and the original McCain Amendment, though, so please speak up in the comments if so.

Comments

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?

[Nick]

Is there a link to the entire compromise legislation?

[Lionel]

Thanks for an interesting analysis.

[Lionel]

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.

[cboldt]

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?

[omellet]

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)?

[cboldt]

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.

[cboldt]

One of possible three differing versions of the complete Senate bill is posted at ...
http://balkin.blogspot.com/2006/09/text-of-current-bush-senate-compromise.html

[MountainMan23]

Two problems with:

SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.
(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.—
(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" ..

[Anderson]

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."