1 Pub. L. No. 104–192, §2(a), 110 Stat. 2104 (1996) (codified at 18 U.S.C. §2441), as amended in 1997.

2 The executive branch had proposed that the Act be expanded to include such crimes when the offender is later found in the United States, regardless of where or against whom the crime was committed, but the House Judiciary Committee considered this unwise in that it might draw the United States into conflicts where U.S. interests were slight and U.S. prosecution might be impractical. War Crimes Act of 1995: Hearing on H.R. 2587 Before the Sub-comm. on Immigration and Claims of the H. Comm. on the Judiciary, 104th Cong. 8 (1996) (Testimony of Michael J. Matheson) [hereinafter Matheson Testimony]; Staff of H. Comm. on the Judiciary, War Crimes Act of 1996, H.R. NO. 104-698 (1996).

3 See, e.g., Convention Relative to the Treatment of Prisoners of War, Art. 130, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention].

4 The United States had never enacted legislation penalizing violations of the Geneva Conventions, apparently because it was thought at the time that such violations could be prosecuted under federal or state penal statutes (in the case of crimes within U.S. jurisdiction) or the Uniform Code of Military Justice (U.C.M.J.) (with respect to crimes committed abroad); but over the years, U.S. courts handed down a series of decisions that cast doubt on the constitutionality of the exercise by military tribunals of criminal jurisdiction over persons not in active military service. See H.R. NO. 104–698, supra note 2.

5 See Matheson Testimony, supra note 2. Executive branch witnesses did not argue that the possibility of criminal sanctions would also be desirable as a deterrent to unlawful conduct by U.S. policymakers, but it has since been suggested that the Act has had just such an effect. See, e.g., Jeffrey Smith, R., Detainee Abuse Charges Feared, Shield Sought from 96 War Crimes Act, Wash. Post, July 28, 2006, at A1 Google Scholar.

6 Matheson Testimony, supra note 2, at 12.

7 The only opposition seemed to come from a few House members who were opposed in principle to any legislation including the death penalty, but who otherwise supported this Act. See Staf F of the House Comm. On The Judiciary, Expanded War Crimes Act of 1997, H.R. Rep. No. 105–204 (1997).

8 Hamdan v., Rumsfeld, 126 S.Ct. 2749 (2006)Google Scholar.

9 The administration had argued that the conflict with Al Qaeda was outside the scope of the Geneva Conventions, and more specifically that it was international in scope and therefore did not qualify as a “conflict not of an international character” for purposes of common Article 3. The Court rejected this interpretation and stated that the language of the article “is used here in contradistinction to a conflict between nations” and that “the commentaries also make clear ‘that the scope of the Article must be as wide as possible.’” Id. at 2795–96. On the administration’s position on A1 Qaeda and the Geneva Conventions, see Sean D. Murphy, Contemporary Practice of the United States, 96 AJIL 475–80 (2002).

10 See the comments of Secretary of Defense Donald H. Rumsfeld reported in Smith, supra note 5. See also the argument of Congressman Duncan Hunter:

152 Cong. Rec. H7522, H7535 (daily ed. Sept. 27, 2006). This is an imaginative hypothetical, but it is almost impossible to conceive that a U.S. prosecutor would actually bring such a charge, assuming that the female interrogator was not acting in a deliberately sexually provocative manner. In any event, a military interrogator would be subject to prosecution under the U.C.M.J. for violations of common Article 3, whether or not such violations are covered by the War Crimes Act.

11 Uniform Code of Military Justice, Arts. 133–34, 10 U.S.C. §§801, 933–934 (2000)Google Scholar.

12 See, e.g., U.S. Dep’t of the Army, The Law of Land Warfare, paras. 11, 507 (Field Manual No. 27–10, 1956).

13 For example, military personnel accused of mistreating detainees in Iraq have been charged with violation of Articles 81 (“conspiracy”), 93 (“cruelty toward, or oppression or maltreatment of” persons subject to the accused’s orders), and 134 (“all conduct of a nature to bring discredit upon the armed forces”) of the U.C.M.J. 10 U.S.C. §§881, 893, 934. The usual practice is apparently to charge the conduct underlying a war crime as a violation of various U.C.M.J. provisions, as opposed to charging the commission of a war crime as such. See, e.g., Michael M., Schmitt, The American Military Justice System and the Response to Prisoner Abuse, Crimes of War Project (June 2, 2004), at <http://www.crimesofwar.org>>Google Scholar.

14 42 U.S.C. §2000dd–1 (to be codified). For the Act, see Detainee Treatment Act of 2005, Pub. L. No. 109–148, Div. A, tit. X, §1001, 119 Stat. 2739, 2740, & Pub. L. No. 109-163, Div. A, tit. XIV, § 1401, 119 Stat. 3474 (to be codified at 42 U.S.C. §2000dd & 10 U.S.C. §801 note).

15 18U.S.C.§2441 note (to be codified). For the Act, see Military Commissions Act of 2006, Pub. L. No. 109– 366, 120 Stat. 2600 (West 2006) (to be codified at 10 U.S.C. §§948a–950w and other sections of titles 10, 18, 28, and 42).

16 42 U.S.C. §2000dd–0.

17 18 U.S.C. §2441 note.

18 See Adam, Liptak, Detainee Deal Comes with Contradictions, N.Y. Times, Sept. 23, 2006, at A1 Google Scholar; Kate, Zernike & Sheryl, Gay Stolberg, Differences Settled in Deal over Detainee Treatment, N.Y. Times, Sept. 23, 2006, at A9 Google Scholar. The senators identified were Lindsey Graham, John McCain, and John W. Warner.

19 To unravel these limitations, it is necessary to examine section 6(d) of the Military Commissions Act, 18 U.S.C. §2441 note, as well as certain other statutory provisions that are incorporated by reference: 18 U.S.C. §2340(2), 18 U.S.C. §113(b), and 18 U.S.C. §1365(h).

20 152 Cong. Rec. S10, 354, S10, 390 (daily ed. Sept. 28, 2006).

21 See id. at S10, 260 (Sept. 27, 2006); id. at S10, 384, S10, 407 (Sept. 28, 2006).

22 Article 129 of the Third Geneva Convention, supra note 3, requires that each party take all measures necessary for the suppression of all violations of the Convention other than grave breaches.

23 See id. Interestingly, the Military Commissions Act goes out of its way to assert that the obligation to impose penal sanctions against “grave breaches” applies to common Article 3, as well as the other provisions of the Convention— that is, that it applies to internal as well as international conflicts. This is, in fact, what the United States argued in 1995 in an amicus brief to the International Criminal Tribunal for the Former Yugoslavia in the case of Prosecutor v. Tadić. The appeals chamber of the Tribunal rejected the argument, holding that the text and negotiating record of the Conventions established that the “grave breaches” provisions applied only to “protected persons” in international armed conflicts. At the same time, the chamber “noted with satisfaction” that the United States had taken this position, and expressed the hope that in due course this view might be generally accepted by other states and international bodies. Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT–94–1–AR72, paras. 80–84 (Oct. 2, 1995). Likewise, the applicability of grave breaches of the Geneva Conventions under Article 8 of the Statute of the International Criminal Court is limited to conduct occurring during an international armed conflict. On grave breaches of common Article 3, see in this Agora Jack M., Beard, The Geneva Boomerang: The Military Commissions Act of2006 and U.S. Counterterror Operations, 101 AJIL 56, 62–64 (2007)Google Scholar.

24 42U.S.C. §2000dd–0.

25 See, e.g., United States v. Brennan, 58 M.J. 351, 354 (2003)Google Scholar; United States v. White, 54 M.J. 469, 474 (2001)Google Scholar. In the Brennan case, the government argued that this standard was not met where a female prisoner was apparently subjected to repeated physical and verbal abuse and sexual harassment by a male prison official over a two–month period, threatened with sodomy, and physically assaulted. The court disagreed and found that this aggravated conduct crossed over the line of the Eighth Amendment.

26 See, in this Agora, Carlos, Manuel Vázquez, The Military Commissions Act, the Geneva Conventions, and the Courts, 101 AJIL 73, 96 (2007)Google Scholar.

27 U.S. Dep’t of Defense Directive No. 2310.01E (Sept. 5, 2006), available at <http://www.defenselink.mil/pubs/pdfs/Detainee_Prgm_Dir_2310_9–5–06.pdf>; U.S. Dep’T of the Army, Human Intelligence Collector Operations (Field Manual No. 2-22.3, 2006) [hereinafter Field Manual No. 2–22.3], available at <http://www.us.army.mil>.

28 Field Manual No. 2-22.3, supra note 27, para. 5-75. Also specifically prohibited are exposing detainees to sexually provocative behavior, intentionally damaging an individual’s religious articles, threats to turn the individual over to others to be abused, and threatening to separate parents from children. Isolation of detainees is tightly controlled.

29 Id., para. 5-80. Illegal actions are to be reported through the chain of command, but if the chain of command itself is implicated, the actions are to be reported to other officers, such as the staff judge advocate.

30 Id., para. 5-74.

31 For example, the manual does not seem to resolve whether sleep deprivation or stress positions are permissible, although their use in a manner that would cause physical pain would be prohibited. Likewise, any permitted technique might become abusive if misused.

32 It has been reported that two classified documents have been issued specifying what interrogation methods may be used by the CIA, but the contents of these documents have not (to my knowledge) been publicly disclosed as of the date of this writing. David, Johnston, C.I.A. Tells of Bush’s Directive on the Handling of Detainees, N.Y. Times, Nov. 15, 2006, at A14 Google Scholar.

33 Indeed, Senator McCain asserted that the Act requires the president to publish in the Federal Register his interpretation of what constitute “nongrave” breaches of the Conventions. 152 Cong. Rec, S10, 384, S10, 413 (daily ed. Sept. 28, 2006).

34 18 U.S.C. §2441 note.

35 In particular, section 5(a) of the Act says that no person may invoke the Geneva Conventions or any of its protocols in any civil proceeding in which the United States or its personnel is a party “as a source of rights in any court of the United States or its States or territories.” 28 U.S.C. §2241 note. See the extended discussion of this point in Vázquez, supra note 26, at 82–87.