Spot you have proved the President's point with your second to last remark. We all agree that there is a minimum standard that all detainees, regardless of their status, should be provided. But there is no law, and importantly no portion of the Geneva Conventions that spells out what that minimum standard is.
Oh, Dave? Here's what Common Article 3 says:
Article 3, the text of which is repeated in all four Geneva Conventions, is the only part of the conventions that applies explicitly to internal armed conflicts. It has been called a "treaty in miniature," and sets forth the minimum protections and standards of conduct to which the State and its armed opponents must adhere. The protections it spells out are at the core of international humanitarian law. Additional Protocol II of 1977 also covers internal armed conflicts, but it is less widely accepted among States than the 1949 Conventions.
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.
This seems pretty specific to Spot. He will return to the subject of the application of Common Article 3 to the conflicts in Afghanistan and Iraq. Spotty has a question, though. All this talk about Hamdi, Hamdan, DTA, and MCA – are you ready for a time line to sort these thing out, boys and girls? Good. Spot would like one, too.
The Detainee Treatment Act of 2005 (sometimes just called the DTA by Spot) has two predicates. One was the revelation April 2004 of detainee mistreatment at Abu Ghraib prison outside of Baghdad by US forces. The other was the Supreme Court's announcement of the decision in Hamdi v. Rumsfeld in June of the same year. Abu Ghraib embarrassed the military and the Congress, and the country, and led to an outcry over the treatment of detainees. Hamdi made it clear that the military and the administration would have to fashion some régime to give detainees a forum to show that they weren't combatants.
The DTA addressed, inter alia, detainee treatment and the Hamdi issue concerning detention without hearing. At the time the DTA was enacted, administration and congressional leaders labored under the illusion that Common Article 3 applied neither to Al Qaeda nor the Taliban. That's right, Dave. Where did they get this notion?
We turn again to John Yoo and Robert Delahunty who wrote a memo to the general counsel of the Department of Defense on January 9, 2002. In the linked copy of the memo, you can read a summary of their conclusions about both Al Qaeda and the Taliban in the first say, four paragraphs. In summary, Al Qaeda was a non-state actor, and the Taliban was not a government, and since Afghanistan was a "failed state," we don't need no stinkin' Common Article 3. The cavalier thinking about the Taliban is especially outrageous, since it was, for better or worse, the government of Afghanistan at the time.
Among the things the memo did was give a green light to outrages upon personal dignity, in particular humiliating and degrading treatment short of torture. And of course, torture was defined down by our friend Professor Organ Failure, John Yoo, in a memo to Alberto Gonzales (then White House counsel) on August 1. 2002.
Spot already discussed how the DTA was pretty well neutered before passage in Because it's good for you.
Then came the shocker for Perfessers Yoo and Delahunty: Hamdan v. Rumsfeld, decided last June. As you know, boys and girls, in fact you are probably sick of hearing Spotty say, Hamdan decided that Common Article 3 did apply to the Taliban and Al Qaeda. That really sent the administration scrambling! For a couple of reasons.
One, it became clear that the administration's ad hoc military commissions did not come within a country mile of meeting the requirement of Common Article 3 that prohibited 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.
Two, a lot of the "harmless pranks" practiced on detainees by military and civilian authorities no longer looked so harmless! In fact, they looked like war crimes! Uh-oh.
This brings us to the final chapter of our saga, the Military Commissions Act of 2006. Spot has already written about some aspects of the MCA in some detail. What remains is a discussion of the amendments of the War Crimes Act by the MCA. We'll talk about later.