The Collision between Common Article Three and the Central Intelligence Agency
43 Pages Posted: 18 Oct 2007
The narrative is set in 2006 between the Supreme Court's decision in Hamdan v. Rumsfeld and the passage of the Military Commissions Act (MCA). During those few months, the Central Intelligence Agency (CIA) was most concerned that an application of Common Article 3 of the Geneva Conventions to all American activities against al Qaeda would prohibit its secret program of detention and interrogation for suspected terrorists. Hamdan, in a retroactive wrinkle, also increased the exposure of government officials involved in the program to civil and criminal penalties. This article, written by a former CIA lawyer, pays particular attention to the CIA's use of secret prisons, the isolation of prisoners from family and friends, the deferral of trial, and to interrogation tactics such as sleep deprivation, bombarding with music, and making the prisoner's cell uncomfortably hot or cold. In application, Common Article 3's standard of humane treatment is more restrictive of the CIA's practices than the Detainee Treatment Act of 2005 (also known as the McCain Amendment). For this reason, the CIA and its supporters strongly pushed for a legislative fix to the Hamdan decision. That fix, of course, was the MCA which, among many things, amended the War Crimes Act and authorized the President to issue new "authoritative" regulations on the scope of Common Article 3. Under my narrative, President Bush's announcement on September 6, 2006 that he was transferring fourteen high-level prisoners from the CIA's secret prisons to Guantanamo was part of his public relations to ensure that Congress passed the MCA.
Keywords: Geneva Conventions, interrogation, detention, secret prisons, CIA, Hamdan, Common Article 3
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