My neighbor

Neal Katyal, on The Colbert Report.

liberty (mail) (www):
The only thing, and the clip was quite funny, is that he did not mention the fact that the Geneva Convention (and I know the Supreme Court didn't say this) doesn't really apply when fighting terrorists, because they do not follow the laws and customs of war and continually violated several provisions.

But, it was a cute clip.
7.28.2006 12:22am
Of course the Geneva Conventions (Common Article 3) apply, liberty, that's precisely what the SCOTUS ruled in Hamdan (which Katyal represented).
7.28.2006 4:55am
That was a pretty good appearance. Colbert is tough--he mixes jokes and serious questions in a way that a lot of guests have trouble tracking, but Katyal seemed to get it.

Incidentally, applying Common Article 3 to those who did not themselves sign or follow the Geneva Conventions is not just something the Supreme Court has done. It was what the United States military did, and urged other nations to do, right up until this Administration. Actually, to be more precise, many in the military have continued to urge that application of Common Article 3--they just haven't been heeded by Rumsfeld and Co.
7.28.2006 8:58am
Humble Law Student (mail):
Okay, what a load of crock. The good professor said, "For every piece of hate mail, I get ten pieces from troops saying thank for your doing this because I want the Geneva protections if I am captured"

I'm calling bs right there.

Our troops know who they fighting. They all know Al-Qaeda won't give Geneva protections a seconds thought regardless of how we act. Of course, if we are torturing prisoners, Al-Qaeda will use that as justifaction for their actions. But not torturing or providing them with Geneva protections won't do anything to improve the treatment of our soldiers that are captured. I know that - our troops know that.

Anyone else struck by how unlikely his statement was?

Btw, its a laudable idea. In a confrontation with another enemy, it might even be relevant to actually protecting our troops. But it isn't now. The extension of Geneva protections to terrorists is really only signinicant in the "hearts and minds" battle for the moderates. Which is important! but completely irrelevant to his point about the soldier's mail.
7.28.2006 9:30am
liberty (mail) (www):
"Anyone else struck by how unlikely his statement was?"

Yeah, I was thinking that too.

As for Geneva, I know its what we used to do and I know the Supreme Court upheld the Convention as something we must follow even when our enemies don't; my point though is the treaty itself says that it only applies when both sides fit the description.

The terrorists that we fight do not fit the description; they commonly violate many of the provisions; so in all honesty, we are following the Convention when we do not provide the rights listed to the terrorists since they do not fit the description of who falls under the Convention. I am not saying we should -- and I understand that the Supreme Court saw it differently -- but I think its pretty clear what the Convention says.
7.28.2006 10:50am
18 USC 1030 (mail):

Your reading of the Conventions is about 99.99% accurate--but due to interpretation and the nature of treaties it is not entirely set in stone. It is true that the Conventions are written such that they are an agreement between states to provide reciprical care--Side A will treat Side B with a certain level of care, so long as Side B will do the same. It is true the Conventions do not, explictly, take into account the treatment of rouge individuals (the protocols due, however, the US did not ratify this). This, however, is more a matter of history than it is about precluding such treatment to these individuals. The Conventions were written as a direct response to WW II, the goal was to set rules for the type of combat they knew--super-power vs. super-power all out warfare. This is not what we have today; therefore, it'd seem the Conventions do not apply.

However, the main argument for the treatment is over POW status, and that the President labels them enemy combatants--indeed, they are not POW's nor should they be considered as such. However, the Conventions also state that combatants that are not POW's are to be treated with a similar level of care (whatever that means). The common articles also give indication that all persons are to be treated humanely.

My view is that read strictly, the Conventions do not apply--However, treaties are generally to be read for the spirit of the document; not the strict reading of each word (of course, this wasn't stated definitively until the Vienna Convention, which was ratified after the Geneva Conventions). If a strict reading of a statement creates a condition that is in conflict with the actual purpose of the Convention, it ought not be considered correct. Of course this is where things get murky--what is the purpose? At what point is that balance? Is it to ensure life of all; or merely the life of your own soldiers? Is providing reasonable care to the enemy done in order to preserve their life; or is it merely a means to protect your own soldiers? I think this some place in the middle--but closer to protecting the home troops.

I think the current case illustrates two issues of importance: one the Geneva Conventions need to be reconsidered; two, the correct standards by which a nation acting as the US is ought to operate under. First, whether or not the Conventions (or any standard) are to be de jure applied to rouge individuals needs to be addressed by the international community. This state of sides arguing everything under the sun does no one any good. As to the second point, if the US is bringing "justice, law, and order" to Iraq, oughtn't we do so in a manner that lives up to these principles? Is it good (not I do not mean legal) to act in a manner in which we defend our behavior with arguments resembling "we are still acting more fairly than the terrorists?" I would think we would be acting far better than the terrorists and would not even consider comparing ourselves to them.
7.28.2006 12:09pm
Mike BUSL07 (mail) (www):
Katyal. on his blog:

So I survived my time defending Hamdan and the Court on Colbert Report, I think. He was a real gentleman both before and after the show.

"Survived?" That was a a complete softballing, by a sympathetic humorist. There was nothing for Katyal to "defend," except perhaps the well-contrived appearance of occasional disagreement between himself and the host.

Oh, and ditto on the bulls**t call regarding the letters from troops.
7.28.2006 12:09pm
Teddy KGB:
I think survived is the right word. I watch Colbert regularly and he can be a pretty tough interview - especially with House Representatives who don't know his format.

As for the troop phone calls, I'm going to take the man at his word. A claim is not BS just because it does not fit your political viewpoint. After all, military lawyers have been extremely critical of the administration's policy regarding detainees. Link

In other words, the statement is not so absurd on its face to call the man a liar.
7.28.2006 12:26pm

Nothing in Common Article 3 says that it "only applies when both sides fit the description" (by which I take it you mean that both sides to the conflict must be parties to the Geneva Conventions and also must be abiding by the Conventions).

Rather, Common Article 3 only requires that the conflict in question take place within the territory of a High Contracting Party (which includes the territories respectively of the United States, Afghanistan, and Iraq). It then applies to all "[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause."

Indeed, it is uncontroversial that Common Article 3 was intended to apply to civil wars and insurgencies, where the conflict would usually be between the government of a High Contracting Party and some sort of armed group in rebellion. Obviously, such a rebel group could not be a Party to the Conventions, and that is part of why Common Article 3 contains no such requirement.

Indeed, the only nominally "controversial" aspect of applying Common Article 3 to the "Global War on Terror" is that doing so would include cases where such an armed group was fighting with High Contracting Parties in other nations, not just their own nation. But the basic idea that Common Article 3 would apply between Parties and non-Parties has always been the precise point of Common Article 3, and nothing in Common Article 3 says otherwise.
7.28.2006 12:46pm
liberty (mail) (www):
18 USC 1030,

Very well stated and I agree completely. Thank you for the legal interpretation.
7.28.2006 12:49pm

Rereading your posts, you may also be suggesting that if a group fails to follow the Conventions, then a Party to the Conventions may retaliate against members of that group by failing to follow the Conventions, even if members of that group would originally have been entitled to some protection under the Conventions.

There is no such general waiver provision in the Conventions. Indeed, it is obvious why there is not: in a war it is quite likely that violations of the Conventions will occur, even if Parties are trying in good faith to abide by them. So, if violations automatically waived the Conventions, the Conventions would not survive long into any war.

So, neither of those claims is correct: for the purposes of Common Article 3, there is no requirement that the "sides" in the conflict all be Parties to the Convention, and there is no requirement that all the sides to the conflict be abiding by the Conventions.

Of course, the flip side of all this is that Common Article 3 guarantees only a minimum of protection--POWs, say, get a lot more protection under the Conventions. But that seems to be a general confusion among some commentators on Hamdan: there are different levels of protection under the Conventions, and while the highest levels require all sorts of conditions be met, the lowest levels do not.
7.28.2006 12:55pm
liberty (mail) (www):

but in a war against terrorists, there is no High Contracting Party on the other side. The point of article 3 as far as I can tell is that non-combatents such as prisoners of war and armed groups in rebellion, not related (even enemies of) the regular army of the other High Contracting Party, are to be treated humanely.

So, if we were fighting a regular army in Iraq that was following the guidelines of the convention and was a High Contracting Party, and then there was also an unrelated insurgency which we were not fighting directly but which was engaging the Iraqi army, perhaps in order to take over instead of us and form a religious state; we must treat them humanely.

It also appears to apply to those who have surrendered, taken ill, wounded, etc - prisoners of war.

I do not see how it applies to terror groups engaging us directly, dressed as civilians, who are not signatories of the Convention nor abide by its rules and where there is no High Contracting Party at all in the conflict.
7.28.2006 12:58pm
liberty (mail) (www):

I am not saying that. I am saying that the terrorists are in no way party to the convention and therefor are not subject to the guarantees, except any general promise we make to treat all persons "humanely" - which is not to say the full benefits of article 3, only a more general promise of humanity.

That all aid, I think we should well exceed that, in general.
7.28.2006 1:02pm

I'm not sure I understand your argument. Obviously, in any conflict between the United States and anyone else, there is at least one High Party involved--namely, the United States itself. Further, Common Article 3 does not state any requirement about whether all the sides to a conflict be Parties or be abiding by the Conventions. It just requires the conflict be occurring within the territory of a High Party.

Again, Common Article 3 uncontroversially applies when a High Party is fighting a civil war. So, you simply cannot argue that there must be High Parties on both sides of the conflict in order for Common Article 3 to apply. To be sure, there are other possible arguments as to why Common Article 3 might not apply between the U.S. and a foreign (rather than domestic) enemy, but the fact that the enemy group is not a Party to the Conventions cannot be one of those reasons.

Finally, I'm not sure where you are getting this distinction between a minimal promise to treat people humanely and what you are calling "the full benefits of article 3." Common Article 3 is nothing more THAN a minimal promise to treat people humanely, and does not provide "full benefits" in the same sense as, say, the Third Convention provides "full benefits" to POWs.

Perhaps the confusing part is that Common Article 3 actually notes that its general prohibition on inhumane treatment specifically prohibits certain things. But according to Common Article 3, these are not additional protections, but rather merely protections which are already contained within the general requirement of humane treatment.
7.28.2006 1:19pm
Chris Bell (mail):

I agree with you that the actual words of the treaty are slightly unclear, but the reading adopted by the Court (and advocated by the military) is not that strange. The treaty says that:

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: [which include fair trials].

Here "international" means "between nations." So if there is fighting going on in the territory of Iraq and Afghanistan but not against Iraq or Afghanistan, this part of the Convention applies.

You said above that you think this doesn't apply because "there is no high contracting party at all in the conflict." But there is! It's the USA. This part of the GC doesn't require that both sides be contracting parties. In fact, it specifically contemplates that one side is not a contracting party.

Try not to think of the Geneva Conventions as a contract, requiring two faithful parties to be operative. The GC requires that the signatories follow it even if the other side doesn't.

This might seem unfair, but it's more of a moral statement of what is correct. Murderers don't follow our laws, but we still follow our laws when punishing them.
7.28.2006 1:42pm

I obviously agree, and here I think the whaling treaty example is useful (whales don't have to be parties to the treaty in order to be protected).

What I think sometimes confuses people (aside from deliberate attempts to confuse people) is the somewhat odd structure of the Conventions. They may not realize, for example, that Common Article 3 actually appears in all of the Conventions (hence why it is "common"), and actually operates as an entirely independent provision of the treaties. Again, the whole point is that Common Article 3 is a catchall minimum, with the various Conventions providing much more detailed and extensive protections for particular cases.
7.28.2006 1:55pm
Chris Bell (mail):
liberty and anyone else:

Also, when you think about the best interpretation of the GC, remember that many of the people at GITMO are innocent. Even the military thinks so:

From the recent profile of Addington - While the JAGs’ questions about the treatment of detainees went largely unheeded, ... the C.I.A. was simultaneously raising similar concerns. In the summer of 2002, the agency had sent an Arabic-speaking analyst to Guantánamo to find out why more intelligence wasn’t being collected, and, after interviewing several dozen prisoners, he had come back with bad news: more than half the detainees, he believed, didn’t belong there. He wrote a devastating classified report, which reached General John Gordon, the deputy national-security adviser for combatting terrorism. In a series of meetings at the White House, Gordon, Bellinger, and other officials warned Addington and Gonzales that potentially innocent people had been locked up in Guantánamo and would be indefinitely. “This is a violation of basic notions of American fairness,” Gordon and Bellinger argued. “Isn’t that what we’re about as a country?” Addington’s response, sources familiar with the meetings said, was “These are ‘enemy combatants.’ Please use that term. They’ve all been through a screening process. We don’t have anything to talk about.”

See here and here as well.
7.28.2006 2:08pm

Getting back to the original topic, Colbert brought up that very issue--the problem being that if the detainees all get fair trials, a good number might actually be found innocent, which would look quite bad for the United States (or at least this Administration).
7.28.2006 2:10pm
yeah medis:
then chimpymcbushhitlerihatetheconsititutiondubya might have to reveal they were just holding all those innocent farmers cause they hate brown people and so that they coudl wave the bloody flag for '06
7.28.2006 2:37pm
18 USC 1030 (mail):
Note: I apologize, this got long, but I think the legal reasoning here is worthy of the read.

Stating that a high contracting party must always abide by the convention is not entirely accurate. Common Article 2 dictates the applicability to the Conventions, there are cases where a High-Contracting party is not required to abide by the Conventions. That case would only be if a state was engaged in conflict with a non-contracting state that did not agree to follow the Conventions. All other engagements with a high-contracting party or domestic engagement by a high-contracting party requires Geneva compliance.

Art 2. In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. (emphasis added)

Meaning, so long as two countries that ratified the Conventions are in a state of armed conflict, the Conventions are to apply--whether or not there is a formal declaration of war. This paragraph is explicit--the Conventions apply if the two parties are high-contracting parties; otherwise go to next paragraph. In this case both the United States and Iraq are high-contracting parties, but we are not engaged with the state of Iraq.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. (emphasis added)

This would seem to dictate that the Conventions apply--absolutely. On February 14, 1956, the Government of Iraq ratified the Geneva Conventions. Therefore, though the party the United States is currently engaged was not a high-contracting party, the nation of Iraq is. Though we do not have a total occupation of Iraq--I think it quite strong to argue the United States is currently partially occupying Iraq. I know the administration argues that this is not an occupation--but I suspect this is due more to necessity in maintaining their legal arguments, than it is an honest belief that a nation over-throwing a foreign government resulting in domestic threat to the peace, disbanding that nation's armed forces, acting as that nation's police/military forces, assisting in the creation of a new government, and providing general assistance is not, at least, partially occupying that state.

Therefore, if one accepts the argument that Iraq is at least partially occupied, they must view the Conventions as applicable. Once again, the high-contracting party requirement is necessary in order to require the use of the Conventions as a whole-- once that occurs, the Conventions apply without regard to the individuals fighting. That is, if due to an occupation of a high-contracting party, the Conventions apply, they apply to the engagement--not to the individual party. Obviously, terrorists would not be entitled to treatment as if they were soldiers in a state army-- but they would be entitled to the protections of combatants, as described in the Conventions. That is, humane treatment, and care similar to POW's.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. (emphasis added

This is where the argument comes up that the Conventions apply no matter the party a high-contracting party is engaged with. This is not the case, in order for a high-contracting party to be required to apply the Conventions when dealing with a non-contracting party, that party must agree to the Conventions, declare their agreement to follow the Conventions, and actually in practice, follow the Conventions.

This is where the purpose of the Conventions, I think, becomes clear. The agreement is a pact between nations in order to facilitate humane treatment during times of war. It applies to International Conflict, Domestic Conflict, and conflicts caused due to occupation. I do not believe the purpose is to form a pact promising reciprocity--I think the purpose is to protect all persons during times of war (combatants and non-combatants alike), the reciprocity agreement of "I won't do x to you if you don't do x to me," I think is more the means than the ends. In order to convince states to follow the Conventions the argument of their own safety was utilized. Thus, it would seem the purpose is to make the Conventions as widely applicable as humanly possible--not to create small compartments whereby the Conventions are applicable, and ruling that if an engagement does not neatly fit in one the Conventions are ignored.

Of course, the reason for requiring both states to ratify the treaty, or agree to follow the treaty is to ensure that the high-contracting party would not be unfairly engaged by an enemy that outright violates the Conventions in order to gain an advantage. In this case, the insurgents did not ratify the treaty, however, Iraq did--as such, the people of Iraq (if one of the 3 justifications for applicability is met) are entitled to the protections of the Conventions. Thus, if the Iraqi people are entitled to the protections of non-combatants provided for in the Conventions, the insurgents are as well--For, we cannot arbitrarily determine which provisions apply and which do not. It is an all or nothing deal. If the US operation is considered a partial occupation, the Iraqis are entitled to protections due to the ratification of the Geneva Conventions and the insurgents are also entitled to whatever protections are assigned them.
7.28.2006 3:54pm
18 USC 1030,

I think it is right that Common Article 2 applies to our actions in both Afghanistan and Iraq with respect to insurgent forces opposing our actions.

I just want to note that satisfying Common Article 2 is not required in order for Common Article 3 to apply. Common Articles 2 and 3 describe two different situations: an armed conflict between High Parties (Common Article 2), and an armed conflict between a High Party and a non-nation which occurs within the territory of a High Party (Common Article 3).
7.28.2006 5:07pm
18 USC 1030 (mail):
yes, this is very true--but I would argue that applicability of Common Article 2 avoids the need for 3--though I admit the court didn't touch it
7.28.2006 6:27pm
liberty (mail) (www):
18 USC 1030,

Thank you for that analysis. I can't disagree with anything you said. And I already admitted that insurgents in Iraq are due the treatment - so long as they abide by the Convention too. You quoted: "in relation to the said Power, if the latter accepts and applies the provisions thereof."

Then you went on to muse about why the pact was put in place and ended up saying it applies even the non-state power does not abide by the convention -- there you lost me.

Furthermore, as to article 3, it still seems to me that there must be two high-contracting parties (as per article 1 &2) in a conflict even if the party engaged (as per 3) is not one of them; insurgents may fit this profile, but certainly not all internetaional terrorist groups.
7.28.2006 7:34pm
Chris Bell (mail):

No, Art3 doesn't require 2 parties + non-contracting party. It specifically contemplates that the situation is contracting party v. non-nation.

It applies "In the case of armed conflict not of an international character..." In other words, a fight that is by definition NOT between two countries.

The article basically covers any situation where a contracting party is fighting a non-nation on the soil of a contracting party. This includes civil wars and Iraq-type situations.

In our civil war, the contracting party would be the Union, the soil would be American, and the non-contracting party would be the Confederacy. In Iraq, we are the contracting party, the soil is Iraqi, and the non-contracting party is the insurgents.

If we were fighting the Iraqi army as well then we would have to apply one of the other articles to the Iraqi army. (And the Iraqi army would have to apply Art3 to the insurgents.)

What would be interesting is if Iraq HADN'T signed the GC. Then we arguably would have to apply the GC to the insurgents because we would not be in "the territory of one of the High Contracting Parties."

Of course, we might want to apply them as a matter of principle....
7.28.2006 8:13pm
Chris Bell (mail):
correction: arguably would NOT have to apply the GC to the insurgents....
7.28.2006 8:15pm
liberty (mail) (www):
But Chris, it says "occurring in the territory of one of the High Contracting Parties," plural, and in article 1 &2 it talks about it as if there are two parties that are engaged in a war. I can't really see how you can have plural high contracting parties if you only have one: The USA.
7.28.2006 9:12pm
18 USC 1030 (mail):
No, you have two contracting parties--The United States AND Iraq. We are not at war with Iraq, but, we are at war IN Iraq; therefore, based on paragraph two of Article 2, which I thought was reasonably clear--the GC applies. You need not be at war with the government of that country--so long as you are a high-contracting party and your military is engaged in the territory of a nation that is also a high-contracting party, the Conventions apply--Whether or not your occupation is met with armed conflict.

We are currently partially occupying Iraq, we ratified the Conventions, Iraq ratified the Conventions, the government of Iraq has not resisted this occupation; therefore, the Conventions apply.

The reason I explained above where you say I lost you. The purpose is to cause as little harm to life and property to non-combatants as possible. Therefore, by their ratification of the Conventions, Iraq is entitled to that protection guaranteed by the Conventions. Once that is determined, you cannot pick and choose which parts to provide (protecting the public) and which to ignore (rights to combatants).

This cannot be argued with, it is the language of the treaty. Now, if you'd like to argue that the United States is not occupying Iraq, that is an argument I disagree with--But I recognize the argument exists and I entertain the possibility that it can be correct.
7.28.2006 10:09pm
Chris Bell (mail):

As you can see, 18 USC 1030 and I get to the same conclusion here, although I feel that the articles are distinct from one another a bit more than he/she does. But to answer your question I understood "high contracting parties" to mean ANY of the ~170 countries that signed the treaty.

So as long as the combat is occuring on the soil of any country that signed the treaty, A3 applies. "[O]ccurring in the territory of one of the High Contracting Parties" meaning "Occuring in the territory of one of the signatories."
7.28.2006 10:48pm
18 USC 1030 (mail):

I see what you are saying, and I agree with you on the seperation. I guess I was coming at it from the angle that the occupation factor makes the Conventions applicable. Therefore, all parties are to be treated as the Conventions dictate for those types of parties. Though I think your argument is a lot more sound. Although I think an understanding of Article two important in order to avoid arguments that the Conventions do not apply....
7.28.2006 11:26pm
liberty (mail) (www):
>We are currently partially occupying Iraq,

OK. I don't disagree. But what if Afghanistan were completely on our side - the democratic government - and only the terrorists were on the other side and they broke the rules..?

And then, lets say that our war with any legitimate government ceased; we were at peace with both Afghanistan and Iraq. But we were fighting against some Indian, Pakastani, Iranian and Egyptian groups unrelated to any government....

Lets say that the only terrorist we faced was regularly attacking in the US, London and verious other Euro-style cisties, like Paris and Madrid and New Zealand with no provocation...

So, could we defend ourselves -- we have never yet considered ourselves to be special in that we are defending a free peoples against a little terrorist group; but in fact by this definition we are exactly that.
7.29.2006 1:38am
liberty (mail) (www):
cute pantties , one thing...
7.29.2006 3:01am

I think those would all be Article 3 situations.

Again, I think it is quite helpful to remember the uncontroversial Article 3 case: a civil war. So, to use Chris's example, in the U.S. Civil War, even though the Confederacy might not be a recognized nation and therefore not a Party to the Geneva Conventions, if the United States was a Party, the United States government would have to apply Article 3 to captured Confederate soldiers.

Now, imagine the U.S. government gets help--they invite, say, France, who also is a Party to the Conventions, into the war to help fight the Confederacy. I would suggest the plain language of Article 3 requires France as well to apply Article 3 to captured Confederate soldiers, even though both of the actual Convention Parties (the U.S. and France) are on the same side. Again, that is because this fits the simple formula in Article 3: it is a conflict between a Party (France) and a non-nation (the Confederate rebels) occuring in the territory of a High Party (the United States). And, of course, it also makes perfect sense that if the United States must abide by Article 3 when fighting a civil war, then so should any allies the United States asks in to help.

Finally, imagine now that the Confederacy is on the run, and they are forced to base themselves in Mexico, which is also a Party to the Conventions, and the United States attacks them in Mexico. Nonetheless, the formula would still apply: it would be a conflict between a Party (the United States) and a non-nation (the Confederate rebels) occurring in the territory of a Party (Mexico). And again, this still makes perfect sense--it doesn't really change the nature of the conflict even though the Confederates have been forced into Mexico. Moreover, the sovereignty of Mexico implies that it has the power to bind forces operating in Mexico to the Conventions.

Finally, as an aside, of course we can defend ourselves against our enemies, and nothing in the Conventions says otherwise. We just have to abide by the minimal requirements of Article 3 when doing so.
7.29.2006 8:27am