Common Article 3 Clarifications

Frankly, this baffles me. I've been looking at this for a week and I still don't see how CA3 has anything to do with the GITMO detainees. Well, other than the SCOTUS and the Congress seem to be forcing the rights of Legal Military combatants into the rights of these clearly ILLEGAL combatants.

The 15-9 vote by the Senate Armed Services Committee highlighted a protracted disagreement over the use of secret evidence in military tribunals and a deadlock over the application of some protections of the Geneva Conventions to al-Qaida and other terrorists that affects CIA interrogations.

The Senate committee vote came just hours after Bush made a rare visit to Capitol Hill to rally House Republicans. It showed the GOP at war with itself over national security, the issue that it hopes will help it retain control of Congress in the Nov. 7 elections.

Despite intense White House lobbying and Bush's vow yesterday to block the legislation, four Republicans including bill sponsors John McCain (R-Ariz.), John Warner (R-Va.) and Lindsey Graham (R-S.C.) joined the 11 committee Democrats to send their measure to the full Senate.

The action potentially sets up a floor fight in the Senate next week, and a difficult conference with the House, where the Armed Services Committee approved a bill similar to Bush's on Wednesday in a bipartisan 52-8 vote.

And

As the committee prepared to meet in closed session yesterday morning, McCain released a Sept. 13 letter from Powell to him backing the committee's version of the bill and rejecting the White House approach.

Powell said he opposed the White House plan to redefine the terms of Common Article 3 of the Geneva Conventions. The Bush bill narrows the meaning of its "prohibitions against cruel, inhumane or degrading treatment or punishment" to bar only "severe physical or mental pain" and "severe physical abuse."

But McCain's bill approved yesterday does not change the Article 3 terms.

"The world is beginning to doubt the moral basis of our fight against terrorism," wrote Powell, a retired four-star general and former chairman of the Joint Chiefs of Staff.

"To redefine Common Article 3 would add to those doubts," Powell wrote. "Furthermore, it would put our own troops at risk."

Let's start with this risk BS. Start with the US puts these citizens at risk when they put them into battle. Then let's consider that the present enemy, terrorists, don't recognize the Geneva Conventions to start, and hardly recognize human rights. How will clarifying the US understanding of CA3 going to put them at any more risk? Al-Qaeda and the other Salafist Jihadist movements are trans-national, or sans-national if you will, and are not signatories of the Convention. Were the soldiers in Somalia, who were killed and dragged through the streets, provided any of the CA3 protections? I'd think McCain would get this most of all considering his previous POW experiences in Vietnam.

Then there is that continual statement on "redefining" CA3. How is it that they would be redefining it? In fact the proper term is clarification. The definition in CA3 is so extremely vague that it could mean anything and be reinterpreted by anyone to mean different things in different circumstances. It is impossible to redefine something that is hardly defined in the first place. Take this even further, and the congress has a chance to clearly define what they see as the meaning of CA3. They could then firmly regulate what the President can allow the CIA or other groups can do with regards to interrogations. You'd think this would be the responsible course of action since it is very apparent that the Congress doesn't like what the President is currently doing. The White House site has their point of view on topic. (See here also.)

McCain came out with this position.

Mr. McCain said the White House wants to redefine the conventions, and doing so would invite international criticism.

"If you change the interpretation of it, you are changing a treaty," he said, arguing that such a move could hurt U.S. agents by opening the door for other countries to interpret the treaty however they see fit.

"I believe then people would be turned over to the secret police," he said.

Funny, they already have the ability to interpret it if they so choose. Since the wording is so VAGUE. Not to mention the fact that the detainees in question are not protected by CA3. I'm not alone in that thought.

According to the administration, the tactics used against the detainees were approved by the Justice Department before being employed, and were found to be consistent with both U.S. law and treaty obligations. They certainly do not rise to the level of torture. Do they constitute "outrages on personal dignity" and "humiliating and degrading treatment" --— to use the language of the Geneva Conventions' Common Article 3? These terms are so hopelessly vague that it's impossible to determine exactly what they mean; but it's clear that certain European courts and international tribunals construe them to prohibit the kind of treatment that the United States has given to senior al Qaeda terrorists.

In June, the Supreme Court's Hamdan decision tried to force Common Article 3 on the U.S. government, for the benefit of those terrorists. This attempt was particularly outrageous given that there's no good reason to think terrorists qualify for Common Article 3 protections in the first place. They are unlawful combatants; accordingly, both the Geneva Conventions' own terms and the accepted laws of war exclude them from the protections given to captured POWs. Moreover, nothing in the U.S. Constitution requires that they be given such protections. (That's largely why the Reagan administration prudently rejected the 1977 Protocol I to Geneva: It would have vested terrorists with rights reserved for honorable soldiers.) Given all this, does it makes sense to grant terrorists Geneva protections anyway - effectively ending the government's ability to employ the techniques at work in the CIA detention program?

Clearly these people are mixing legal combatants protections with those for combatants that are afforded no protections in the first place. You'd think that they could change the legislation to recognize the rights of legal combatants and clearly define those given to the illegal combatants. Does anyone honestly believe terrorists would make any differentiations? Or that other countries would go about quibbling on giving the terrorists rights under CA3 where they don't fulfill the definition of legal combatant?

Shamefully, this all stems from the SCOTUS finding in Hamdan that they must be treated under CA3. How the judges came to applying rights that don't fit the definition in CA3 that was originally agreed to is beyond me. Especially since the US refused to become a signatory of Protocol 1 which would have given terrorists that right.