No Easy Answers


Friday, September 22, 2006

Interrogation, Geneva Convention, and the Negotiated Statute

Source = http://natseclaw.typepad.com/natseclaw/files/Admin.SASC.Agreement.pdf

The September 21 negotiated Agreement betwen the White House and some Republican Senators. At a glance, the "bottom line" language is the White House's.

                    AGREEMENT UPON COMMON ARTICLE 3

SEC. 7. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR
        CERTAIN CLAIMS.

        (a) IN GENERAL.--No person may invoke the Geneva Conventions or any
protocols thereto in any habeas or civil action or proceeding to which the United States,
or a current or former officer, employee, member of the Armed Forces, or other agent of
the United States, is a party as a source of rights, in any court of the United States or its
States or territories.

      (b) GENEVA CONVENTIONS DEFINED.--In this section, the term "Geneva
Conventions" means--

        (1) the Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3217);

       (2) the Convention for the Amelioration of the Condition of the Wounded, Sick,
and Shipwrecked Members of the Armed Forces at Sea, done at Geneva August 12, 1949
(6 UST 3217);

      (3) the Convention Relative to the Treatment of Prisoners of War, done at Geneva
August 12, 1949 (6 UST 3316); and

       (4) the Convention Relative to the Protection of Civilian Persons in Time of War,
done at Geneva August 12, 1949 (6 UST 3516).

SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.

       (a)(1) IN GENERAL.--The acts enumerated in subsection 2441(d) of title 18,
United States Code, as amended by subsection (b) of this section, and in subsection (c) of
this section, constitute violations of Common Article 3 of the Geneva Conventions
prohibited by United States law.

        (2) PROHIBITION ON GRAVE BREACHES.--The provisions in section 2441 of title
18, United States Code, as amended by this section, fully satisfy the obligation under
Article 129 of the Third Geneva Convention for the United States to provide effective
penal sanctions for grave breaches which are encompassed in Common Article 3 in the
context of an armed conflict not of an international character. No foreign or international
sources of law shall supply a basis for a rule of decision in the courts of the United States
in interpreting the prohibitions enumerated in subsection 2441(d).

       (3) INTERPRETATION BY THE PRESIDENT.--(A) As 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 and to promulgate higher standards



and administrative regulations for violations of treaty obligations which are not grave
breaches of the Geneva Conventions.

        (B) The President shall issue such interpretations by Executive Order published in
the Federal Register, and such orders shall be authoritative (as to non-grave breach
provisions) as a matter of United States law, in the same manner as other administrative
regulations.

       (C) Nothing in this section shall affect the constitutional functions and
responsibilities of Congress and the judicial branch of the United States.

       (b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.--(1)
Section 2441 of title 18, United States Code, is amended--

             (A) in subsection (c), by striking paragraph (3) and inserting the following
       new paragraph (3):

               "(3) which constitutes a grave breach of Common Article 3 as defined in
       subsection (d) when committed in the context of and in association with an armed
       conflict not of an international character; or";

              (B) by adding at the end the following new subsection:

              "(d) COMMON ARTICLE 3 VIOLATIONS.--

              "(1) PROHIBITED CONDUCT.--In subsection (c)(3), the term `grave breach
       of Common Article 3' means any conduct (such conduct constituting a grave
       breach of common Article 3 of the international conventions does at Geneva
       August 12, 1949), as follows:

                     "(A) TORTURE.--The act of a person who commits, or conspires or
              attempts to commit, an act specifically intended to inflict severe physical
              or mental pain or suffering (other than pain or suffering incidental to
              lawful sanctions) upon another person within his custody or physical
              control for the purpose of obtaining information or a confession,
              punishment, intimidation, coercion, or any reason based on discrimination
              of any kind.

                      "(B) CRUEL OR INHUMAN TREATMENT.--The act of a person who
              commits, or conspires or attempts to commit, an act intended to inflict
              severe or serious physical or mental pain or suffering (other than pain or
              suffering incidental to lawful sanctions), including serious physical abuse,
              upon another within his custody or control.

                     "(C) PERFORMING BIOLOGICAL EXPERIMENTS.--The act of a
              person who subjects, or conspires or attempts to subject, one or more



      persons within his custody or physical control to biological experiments
      without a legitimate medical or dental purpose and in so doing endangers
      the body or health of such person or persons.

              "(D) MURDER.--The act of a person who intentionally kills, or
      conspires or attempts to kill, or kills whether intentionally or
      unintentionally in the course of committing any other offense under this
      section, one or more persons taking no active part in the hostilities,
      including those placed out of combat by sickness, wounds, detention, or
      any other cause.

               "(E) MUTILATION OR MAIMING.--The act of a person who
      intentionally injures, or conspires or attempts to injure, or injures whether
      intentionally or unintentionally in the course of committing any other
      offense under this section, one or more persons taking no active part in the
      hostilities, including those placed out of combat by sickness, wounds,
      detention, or any other cause, by disfiguring the person or persons by any
      mutilation thereof or by permanently disabling any member, limb, or
      organ of his body, without any legitimate medical or dental purpose.

              "(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.--The act
      of a person who intentionally causes, or conspires or attempts to cause,
      serious bodily injury to one or more persons, including lawful combatants,
      in violation of the law of war.

              "(G) RAPE.--The act of a person who forcibly or with coercion or
      threat of force wrongfully invades, or conspires or attempts to invade, the
      body of a person by penetrating, however slightly, the anal or genital
      opening of the victim with any part of the body of the accused, or with any
      foreign object.

              "(H) SEXUAL ASSAULT OR ABUSE.--The act of a person who
      forcibly or with coercion or threat of force engages, or conspires or
      attempts to engage, in sexual contact with one or more persons, or causes,
      or conspires or attempts to cause, one or more persons to engage in sexual
      contact.

              "(I) TAKING HOSTAGES.--The act of a person who, having
      knowingly seized or detained one or more persons, threatens to kill, injure,
      or continue to detain such person or persons with the intent of compelling
      any nation, person other than the hostage, or group of persons to act or
      refrain from acting as an explicit or implicit condition for the safety or
      release of such person or persons.

       "(2) DEFINITIONS.--In the case of an offense under subsection (a) by
reason of subsection (c)(3)--



               "(A) the term `severe mental pain or suffering' shall be applied for
       purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning
       given that term in section 2340(2) of this title.

               "(B) the term `serious bodily injury' shall be applied for purposes
       of paragraph (1)(F) in accordance with the meaning given that term in
       section 113(b)(2) of this title.

               "(C) the term `sexual contact' shall be applied for purposes of
       paragraph (1)(G) in accordance with the meaning given that term in
       section 2246(3) of this title.

               "(D) the term `serious physical pain or suffering' means bodily
       injury that involves--

                      (1) a substantial risk of death;

                      (2) extreme physical pain;

                       (3) a burn or physical disfigurement of a serious nature, not
       to include cuts, abrasions, or bruises; or

                     (4) significant loss or impairment of the function of a
       bodily member, organ, or mental faculty.

               "(E) the term `serious mental pain or suffering' shall have the
       same meaning as `severe mental pain or suffering' as such term is defined
       in 18 U.S.C. ยง 2340(2), except that the term `serious' shall replace the
       term `severe' where it appears in such definition, and except that, as to
       conduct occurring following the date of enactment of the Military
       Commission Act of 2006, the term `serious and non-transitory mental
       harm (which need not be prolonged)' shall replace the term `prolonged
       mental harm' in such definition."

        "(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO
COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK.--The intent specified
for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1)
precludes the applicability of those subparagraphs to an offense under subsection
(a) by reasons of subsection (c)(3) with respect to--

              "(A) collateral damage; or

              "(B) death, damage, or injury incident to a lawful attack.



              "(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE.--
       Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of
       subsection (c)(3) in the case of a prisoner exchange during wartime.".

       (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, as if enacted immediately after the amendments made by
section 583 of Public Law 105-118 (as amended by section 4002 of Public Law 107-
273).

       (c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT
OR PUNISHMENT.

        (1) IN GENERAL.--No individual in the custody or under the physical control of
the United States Government, regardless of nationality or physical location, shall be
subject to cruel, inhuman, or degrading treatment or punishment.

        (2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED.--
The term `cruel, inhuman, or degrading treatment or punishment' in this subsection shall
mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined
in the United States Reservations, Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment
or Punishment done at New York, December 10, 1984.

       (3) The President shall take action to ensure compliance with this subsection,
including through the establishment of administrative rules and procedures.


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