James Frank Solís: What’s wrong with Common Article 3

20 September 2006

What’s wrong with Common Article 3

10:12 AM

Note that the title is not in the form of a question. I’m not asking what’s wrong with; I’ve my own ideas about that. As always, though writing about the law here, I’m not writing as a lawyer (heaven forbid!). I used to want to be a lawyer, but changed my mind. (Thank you, Texas Tech philosophy department!) I write as a citizen in a republic in which the practice of the law may be reserved to lawyers, but the reflection upon it ought to be the daily lot of all.

The President wants a law out of Congress which will clarify for intelligence operatives just how Common Article Three of the Geneva Conventions if to be interpreted and applied. His critics, John McCain among them, are characterizing this as a ‘re-interpretation’ of Common Article Three, and whining and weeping about what will happen to our soldiers if other nations apply their own ‘interpretations’ of the article.

As of yet, there is nothing to be ‘re-interpreted’. When the Supreme Court, in the Hamdan decision, informed us that, somehow, Common Article Three was to be applied in the war on terror, they didn’t interpret the article. They said only that it applied and that courts in which accused terrorists are to be tried must be created by Congress. The President is asking for a law out of Congress which will comply with this new, wonderful right for terrorists created from whole cloth by the utopia seekers on the Supreme bench.

We can’t just ‘apply’ Common Article Three. It’s too vague. And that’s what’s ironic about this. McCain and the other stooges pretend concern for our operatives. Those operatives are in danger of being sued by terrorists for violations of Common Article Three or of being tried in international courts for violations of Geneva, thanks to (in)justices Breyer, Kennedy, Souter and Ginsberg. If there is some provision of law the violation of which can get you sued or tried, wouldn’t you want as much clarity about that provision as possible? I would. And I don’t think that intelligence operatives would be unreasonable if they refused to interrogate on the grounds that they can have no reasonable assurance that at any moment they are not violating Common Article Three.

And it wouldn’t be that difficult to be sued. Here, read Common Article Three for yourself:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all cases be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth of wealth, or any other similar criteria.

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 judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Now that Breyer, Kennedy, Souter and Ginsberg have ruled, it doesn’t matter that according to Common Article Three’s own language, it applies to “armed conflict not of an international character”. But that doesn’t matter, because even if that were not the case, certain of the provisions are so vague as to make someone guilty of ‘torture’ if a prisoner doesn’t get his special blanky sent to him from mommy back home in Syria. Surely such an act would constitute ‘cruel treatment’, wouldn’t it?

In general laws specify with as much precision as language allows just what sorts of acts constitute violations. Here in the U. S., for example, we don’t have laws that simply prohibit ‘murder’. We have laws that prohibit murder and specify what ‘murder’ is. You think you know, don’t you? Well, did you know that in your state murder is not assumed to be understood by everyone as if it were a matter of ‘common’ sense? Your state law defines it for you, probably in language like this:

Criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.

So if you ever found yourself on trial for murder, you would hopefully have no doubt what you are accused of or exactly how you violated the law and becamse liable to trial. Wouldn’t it be nice, if you were an intelligence interrogator and wanted to know, in the conduct of your interrogation, which of the many techniques would under the now-applicable Common Article Three be defined as ‘torture’ or ‘cruel treatment’? Sure you would. But John McCain doesn’t think you should. John McCain thinks you should do your job with no idea how your government, or an international court, is going to apply that law against you if one of your subjects later accuses you of torture. Read Common Article Three again. Ask yourself: How does this article define such important terms as ‘torture’, ‘cruel treatment’ and so forth?

McCain and others think it’s just awful that the President is asking Congress for legislation which will specify for interrogators just what sorts of acts constitute torture. They think it’s wrong for us to apply our own interpretation of Common Article Three.

News flash for John McCain: Any country which thinks it wants to abide by Common Article Three will have to apply its own understanding. Important terms aren’t defined by the Article itself! In order to be applicable law the terms in the article must be given meaning by someone. Breyer, Kennedy, Souter and Ginsberg, in their infinite foolishness, did not do so when they decreed from the imperial bench, that we are now bound by Common Article Three in a conflict which is international in character. Who is supposed to give those terms meaning? Al-Qaeda? Hezbollah? The French? The U. N. Security Council? International courts? If those, or similar entities are the only choices other than Congress, then one just has to wonder how McCain and his ilk can object to having the matter decided by Congress. Personally, I think it’s because McCain and his ilk are political, self-seeking, sanctimonious jack asses. Apparently they see an opportunity here. Maybe there is one. Of course, there’s always an opportunity to put your country’s future ahead of your political fortunes. Yes, I really said that.

And they want us to think they are concerned about our nation’s future. They want us to believe they are concerned about our compromising our nation’s principles. They are concerned that it violates our national principles to have a trial in which the accused is never confronted with the evidence against him.

This they willingly forget. Those constitutional principles are there not as a declaration of human rights; the Constitution is not that ambitious a document. Those principles are there to protect us, the subjects of the government outlined in that document. Those principles are there not to protect humankind, but to protect us—from that government. The people who have a right to confront the witnesses against them are the citizens of the nation created by the ratification of the Constitution—not the enemies of that nation. The idea that the Constitution—which creates a government designed, among other things, for the common defense of the member states and, by implication, the citizens of those member states—also protects our enemies, while a pretty idea (not to mention stupid), is more importantly a deadly one. Deadly for us, you know: the people of the United States of America.

If we want to extend the protections of the Constitution to the whole world then we ought to bring the whole world under its jurisdiction. So be it. Let us sally forth and take our empire. Then, and only then, let the world claim those protections. Until then, they are for our protection. And we ought to apply those protective principles with at least a moderate—if not extreme—prejudice.

What’s wrong with Common Article 3

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