JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the President’s recent Executive Order interpreting Common Article 3 of the Geneva Conventions for US interrogations practice is an invalid and illegal act …

On July 20, 2007, President Bush signed Executive Order 13440 – Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency. This Executive Order is a result of an inter-agency process undertaken pursuant to the Military Commission Act of 2006. For the reasons explained below, the President’s order is an invalid and illegal act that guts the Geneva Conventions. These are policy preferences that are criminal.

First, the Executive Order reaffirms the President's determination of February 7, 2002 that, for the United States, members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. This determination concluded that the Taliban had waived their right to Third Geneva Convention POW status because they did not comply with the four prong test that forms one of the definitions of who is a POW in an international conflict. The analysis underlying that determination was flawed at the time as was pointed out by the then Legal Advisor of the Department of State. Moreover, the analysis simply did not take into account several other categories of persons that are entitled to Third Geneva Convention POW status. As to Al-Qaeda, the Supreme Court in Hamdan stated that at a minimum they were entitled to the protections of Common Article 3 — it did not reach their status as POW’s. Traditionally, we would give them POW status as we did with the Viet-Cong in Vietnam. The President was wrong in 2002 and is wrong again in 2007, with devastating consequences for the United States.

Second, the President maintains the designation of "unlawful enemy combatant" which does not track with the categories foreseen in the Third or Fourth Geneva Conventions. Under the Executive Order, persons who are entitled to POW status as a matter of the Geneva Conventions will be provided Common Article 3 protections only. And those Common Article 3 will be only “ersatz” Common Article 3 protections of the limited kind stated in the Executive Order. This approach is another effort to decouple these persons from the Geneva Conventions through a U.S. internal law approach that does not track with the Geneva Convention definitions.

Third, the “cruel, inhuman or degrading treatment” definition is a definition of US internal constitutional law and is inconsistent with the object and purpose of the Geneva Conventions and other treaties that use that language This definition does not prevent the argument to be made again that cruel inhuman and degrading treatment is permitted outside the United States (except to the extent stated by this act as opposed to the Constitutional standard) because the Constitution does not apply outside the United States. If the constitutional standard of “shocks the conscience” is said to apply, that standard is not that foreseen in the Geneva Conventions. The constitutional standard is a questionable local rule in this context as what “shocks the conscience” of any US court in this armed conflict is up to anyone’s guess. US courts have shown a propensity to not be willing to entertain the claims about their treatment in the various cases brought by present or former detainees on the grounds of state secrets, political question, or federal officer immunity type doctrines.

Fourth, the President, with Congressional acquiescence, is asserting what he does is the authoritative interpretation of the Common Article 3 treaty requirements. The use of the terms “international obligations” raises a concern whether the Executive Order is attempting to make a definition that also would cover other human rights instruments such as the Convention Against Torture and other forms of Cruel, Inhuman and Degrading Treatment and the International Covenant on Civil and Political Rights as well as any customary international law rules (drawing from Paquete Habana type analysis). No doubt the President’s hope in this approach is to make sure the greatest deference is shown by courts to his determinations, erroneous as they are. Again, this is subtracting persons from the protections of the Geneva Conventions and other international law.

Fifth, the language detailing what is prohibited under Common Article 3 is written in the negative stating that as long as the confinement and interrogation practices do not include the various points described below then the practices will be in compliance with Common Article 3. Through a series of artful (but ultimately transparent) phrases with references back to U.S. domestic law (as amended by recent law), the President proceeds to place markers on what is prohibited that I am certain provide a space to allow in several practices that would be suspect under the Geneva Conventions. Some have already asked about why “sleep” is not included in the laundry list. Others have asked about ICRC access to these prisoners not being included (thus permitting secret incommunicado detention which is illegal). It is as much what one does not see as what is listed that is important in reading this list. Readers should keep in mind that this kind of laundry list approach was rejected in the drafting of the Geneva Conventions precisely because the drafters (no doubt remembering the inventiveness of the German high command lawyers with the 1929 Geneva Conventions) were worried that artful persons would try to define and interpret the terms in a manner that would leave space for the kinds of acts the Geneva Conventions were intended to prevent from happening. For example, the “outrages against personal dignity” language of Common Article 3 of the Geneva Conventions is now construed narrowly. Section E prohibits willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield (emphasis added); The “willful and outrageous acts”, “done for the purpose”, “reasonable person” and “considering the circumstances” language provide along with the focus on sexual simulation “wiggle room” that seriously waters down the meaning of Common Article 3.

Sixth, the act is written in a manner to prevent again any private right of action. I am also uncertain how a criminal prosecution for violation of the Executive Order might be permitted to go forward since rights under the act inure to the CIA’s benefit alone and not to the government as a whole.

Seventh, the treatment here diverges from the obligations under the Uniform Code of Military Justice and Army Field Manuals to which our soldiers are trained. This divergence maintains the kind of space between the legal regimes for uniformed soldiers and CIA persons that led to the problems at Abu Ghraib. Uniformed soldiers were court-martialed for doing things that they said intelligence persons were asking them to do. One can easily imagine down the road CIA types (and high level civilians in Defense for that matter)
encouraging soldiers to do things that violate their obligations under the Uniform Code of Military Justice but do not violate this order. Lynndie Englund and Charles Graner? Move over and make space for your other uniformed colleagues.

In sum, the Executive Order reaffirms the elimination of Geneva Convention protections and narrows the definition of the protections that are said to be under Common Article 3 and other international obligations. Through this artful effort in internal U.S. foreign relations law the U.S. can try to have its cake and eat it to. It can say to the rest of the world that it has not changed the Geneva Conventions and as a matter of internal law it can maintain all kinds of latitude for how it treats these people.

The bet being made by of all those involved in approving the Military Commissions Act and this Executive Order is that the United States can enshrine illegality but will be able to achieve legitimacy for its actions. First, legitimacy is procured by having the Congressional action of passing the Military Commissions Act giving great deference to the Presidential determinations and creating this separate Military Commission space. Second, the Presidential Executive Order seeks to further provide legitimacy to this illegality. The hope is that review by the courts, if any, will only be through the Military Commission process and only for narrow bases with great deference to the President further providing legitimacy. Third, in case no one has noticed, a very aggressive charm offensive is going on by the United States to encourage other states to allow the United States to have its way. Thus, the German complaint on detainee treatment was withdrawn early this summer. The Legal Adviser at the Department of State was dispatched along with others around the world to explain the U.S. position. It appears that during the G-8, ideas like a National Security Court for each nation were “bruited”. All of these acts are part of getting other states to go along with how the United States intends to act and possibly to encourage them to act similarly to the United States. Go along to get along, so to speak.

Many wonder why the United States government persists in refusing to return to its traditional standards. The answer would appear obvious to anyone who has read the February 7, 2002 Presidential determination and saw the reaction to the Hamdan decision in 2006. During the intervening years 2002-2006 (if not before and afterward), the type of treatment of detainees that we saw at Abu Ghraib was not an isolated incident. It was systematic. The high level civilians and generals who put in place that system and allowed it to go forward know they committed war crimes and are doing all they can to protect themselves from criminal liability. They are relying on these types of interpretations in the hope that they will have some cover. Let us not acquiesce in giving them that cover.

This Executive Order does not protect our troops. As we saw in the first Gulf War, when the Iraqi troops had a choice between surrendering and fighting to the death, the fact that they would be well treated encourages surrender — reducing our risks of casualties at the same time. If a person knows that they will be tortured if captured, the calculus is completely different. In addition, we must always keep in mind the powerful idea of reciprocity. In future conflicts, our adversaries will point to our efforts in this setting to gut the Geneva Convention protections to rationalize their barbarity towards our captured soldiers. I fear that the damage done so far is already so significant that we are in a situation where the only way to show the world we truly reject this route is to criminally prosecute in our domestic courts our high level civilians (including the lawyers) and generals who put in place this effort to gut the Geneva Convention.

Those doing this work are no doubt hoping that their interpretations that are illegal, followed by acquiescence by other states, will lead to legitimacy on the international plane for the radical position they have taken. However, resistance by other states to this denuding of the Geneva Conventions can help maintain the illegitimacy of this five year long effort to create a black hole for certain human beings. Resistance can take the form externally of states who have detainees in the system insisting that detainees are given full protections as a matter of international law obligations of the United States. This Executive Order is merely internal U.S. law and it is a basic rule of international law that no state can extract itself from its international obligations through its internal law (enshrined in the Vienna Convention on the Law of Treaties but also in customary international law). As the Geneva Conventions have been signed by all 192 states, all states may object to the U.S. Executive Order as an illegal and invalid act and insist on compliance by the United States with the higher standards of the Geneva Convention as a matter of treaty enforcement.

Resistance can also be internal through Americans — yes, Americans! — insisting that their government not play legalistic games and return to the standards applied for nearly 60 years in myriad conflicts (See the eloquent statement of P.X. Kelley and Robert F. Turner in their Washington Post Op-Ed — War Crimes and the United States). An American sitting even here in exotic Toledo, Ohio can see the use of internal law being made here and compare it with the international law obligations that the United States owes to itself and to the rest of the world. An American can insist that the government meet those international obligations. The ability to do that I call second vision or “dedoublement analytique” in a forthcoming article. It moves away from discussions of monism and dualism to focus on a more citizen oriented vision of international law.

There is the risk that the efforts to blind Americans to international obligations and make us proud of that blindness will succeed. We should not allow leaders to continue to try to make a virtue of their or the electorate’s ignorance to our detriment. In any event, I submit that it is not so hard to see what is going on. In fact, I have had two high school student interns working with me on the Military Commissions Act. I gave them the Executive Order and they saw right away what was going on. So I think that if 17-year olds can figure it out, than the rest of us ought to be able to figure it out too.

Benjamin Davis is a professor at the University of Toledo College of Law
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