By Dave Caddell
September 07, 2006
On September 6, 2006, President George W. Bush gave a speech to explain his administration’s new course of action in dealing with accused terrorists captured on the global battlefield. In this speech he outlined two major developments. For the first time, the president admitted that United States government agents had been holding and interrogating a small number (14) of highly dangerous and important figures in the war on terror in discrete and unnamed locations around the world. This approach, he insists, has been very helpful in gaining important information to foil planned attacks and to learn how the major terrorist networks are organized, communicate and plan attacks. However, he stated that those individuals have been transferred to Guantanamo and would face trials by military commissions as soon as Congress passes his proposed legislation outlining the rules and details of those proceedings. And second, he explained the basic parts of his proposed legislation on how government agents can fight the War on Terror.
While most of the speech was an attempt to reinforce his view that it is necessary for the government to have wide latitude in fighting this war, President Bush very briefly outlined the most basic aspects of his proposed legislation. He stated:
So today, I’m asking Congress to pass legislation that will clarify the rules of our personnel fighting the war on terror. First, I’m asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act—so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America’s obligations under Common Article Three of the Geneva Conventions. Third, I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts—in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs.
President Bush explained:
The Supreme Court’s recent decision has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as ‘Common Article Three’ applies to our war with al Qaeda. This article includes provisions that prohibit ‘outrages upon personal dignity’ and ‘humiliating and degrading treatment.’ The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American and foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act—simply for doing their jobs in a thorough and professional way.
Perhaps not surprising, however, the president did not go into any detail at all as to why he is proposing that government personnel (most likely, CIA agents) should not be sued in American courts, especially if it is in fact the case that they engage in illegal torture.
Until much more specific information is given as to the president’s proposed legislation or Congress’s draft legislation, a legal analysis is very general. However, a general discussion of Common Article Three of the Geneva Conventions might be helpful. The most relevant portion of Common Article Three, which the U.S. Supreme Court has held applies to today’s enemy combatants, is the provision that details what is prohibited under international law. It states:
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
While it is in fact rather unclear what these terms precisely mean, it is somewhat misleading to suggest that they are so unclear that an American government agent would not have any idea as to their meaning. Instead, such persons have resources that could guide them in a safe direction. The Army Field Manual, for instance, describes certain things that are not permitted. According to the new Army Field Manual, which was released on September 6, 2006, the following interrogation techniques are prohibited: forced nakedness, hooding, physical beating, sexual humiliation, threatening them with dogs, depriving them of food or water, performing mock executions, shocking them with electricity, burning them, and water boarding. Despite this, however, it would be wise if Congress explained in more certain terms what tools American personnel can use in this war. For one, it is better for Congress, the representatives of the people, rather than the executive, to make these types of decisions since the clarification would shed light on an already existing congressional statute, the War Crimes Act. And second, it would be more of a deliberative process.
Relating to the president’s proposal that American personnel be shielded from lawsuits by detainees in U.S. courts, international law doesn’t seem to provide much. In fact, it seems that the right to sue civilly in American courts is a matter of American law, which would be proper for Congress to pursue. At the very least, it does not seem to be governed by the Geneva Conventions, which seems almost exclusively concerned with protecting the basic humanitarian rights of those captured in war (due process, treatment, etc…). Consequently, based on this basic research relating to international law, this issue may relate more to American public policy than international law.
Finally, it has been reported that President Bush’s proposal would continue to deny those tried in military “commissions” the right to have access to certain evidence used against them. Furthermore, evidence obtained through coercive interrogations that fall short of torture would also be admissible so long as it is deemed probative and credible by the judge. If Congress approves this measure, it is unclear what the legal effect will be. This is because the Supreme Court in the Hamdan case seemed to rely heavily on the fact that Bush’s prior military tribunals violated American rules, such as the Army Field Manual. However, if Congress passed this legislation, that could significantly undermine the argument that these military commissions are illegal since they have Congress’s stamp of approval, which the Supreme Court seemed to insist on.
DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.