an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Administration Confirms Its View that CIA May Engage in "Cruel, Inhuman and Degrading" Treatment
In an important story in tomorrow's New York Times, Doug Jehl and David Johnston report on how the Administration successfully opposed enactment of a provision in recent legislation that would have specifically prohibited the CIA from engaging in "cruel, inhuman and degrading" treatment of detainees. A letter from National Security Adviser Condoleezza Rice to members of Congress "expressed opposition to the measure on the grounds that it 'provides legal protections to foreign prisoners to which they are not now entitled under applicable law and policy.'"
This confirms the theory I wrote about in a four-part post here a few days ago: that the Administration has concluded that the CIA is not presently prohibited from engaging in cruel, inhuman and degrading conduct when it interrogates suspected Al Qaeda operatives outside U.S. jurisdiction--even though such conduct would be unconstitutional if conducted by the CIA within the U.S., and would be prohibited by law, treaty and executive directive if conducted by the Armed Forces even outside the U.S.
The article further confirms my understanding that the new OLC Memo on torture, although a dramatic improvement over the 2002 OLC Memo, nevertheless does not affect DOJ's previous advice that the CIA may engage in particular highly coercive techniques that fall just short of statutory "torture." The article reports "[c]urrent and former government officials" as saying that "specific interrogation methods were addressed in a series of still-secret documents, including an August 2002 one by the Justice Department that authorized the C.I.A.'s use of some 20 interrogation practices. The legal opinion was sent to the C.I.A. via the National Security Council at the White House. Among the procedures approved by the document was waterboarding, in which a subject is made to believe he might be drowned. The document was intended to guide the C.I.A. in its interrogation of Mr. Zubaydah and a handful of other high-level detainees. Instead, it led to a series of exchanges between the Justice Department and the intelligence agency as they debated exact procedures to be employed against individual detainees."
NOTE: The NYT story identifies me as a former DOJ attorney who "believe[s]" that the administraion had "always wanted to leave a loophole where the C.I.A. could engage in actions just up to the line of torture." Just to be clear: That conclusion is simply what I deduced from documents that have been made public after I left the Department (as reflected in the series of posts below). I did not learn of anything about this issue while at DOJ, and nothing I have written or said reflects any confidential information to which I was privy at OLC.
UPDATE: A couple of readers have questioned whether most Americans will perceive this development as such a bad thing, or whether they might instead respond: "The Administration is waterboarding Khalid Shaikh Mohammed? Damn, I sure hope so."
Sadly, I concede that many, perhaps most, readers of the Times story might have such a response--at least at a gut level. I think that it would be extremely unfortunate for us to act in accord with that impulse, and that the costs of going down that road are far greater than the benefits. But although I have a strong moral intuition about such things, I'm hardly an authority on the empirical questions of consequences. I'll leave it to others with much more experience and authority than I to speak to those questions much more effectively and eloquently than I could hope to do. I'll simply make four brief points in response:
1. The conduct we're talking about here is conduct that would not only be unlawful if committed by the Armed Forces, but that would also presumptively be unconstitutionalif even the CIA engaged in it here in the U.S. (The constitutional test -- conduct that "shocks the conscience" and thus violates the Due Process Clause -- is the express substantive standard that the "cruel, inhuman and degrading" prohibition would instantiate. The Administration would not need to prevent enactment of the prohibition if it did not wish to preserve the authority to engage in conduct that meets this standard.) Is there any really persuasive argument that the CIA should be permitted to avoid such constitutional restrictions merely by the fortuity that it flies these detainees to an undisclosed foreign location rather than to a detention facility in South Carolina?
2. The legal theory that supports the waterboarding of KSM is not limited to top Al Qaeda leaders. It would permit the inhumane treatment outside U.S. jurisdiction of any detainee not protected by the Geneva Conventions -- a category that is, in this Administration's view, remarkably broad, encompassing virtually anyone who is suspected of aiding Al Qaeda in any way. The limitation to "top" Al Qaeda leaders, if it exists, is a function of policy, not of legal constraint (unless I'm missing something).
3. It's somewhat unrealistic to hope that the policy will not as a practical matter have ramifications far beyond the class of persons for whom the policy was designed. The "migration" of such techniques, and their ilk, to interrogations by the Armed Forces, and to detainees who are protected by Geneva or who have much more questionable intelligence value, is very difficult to prevent, particularly where the CIA's harsh methods become widely known and emulated within the broader community of interrogators who are under intense pressure to obtain valuable intelligence (whether about future terror or simply about Iraqi insurgency plans). In addition to the story told in the Fay Report, Andrew Sullivan is especially worth reading on this very serious problem.
4. This is, to my mind, the most important point: Even if we do as a Nation ultimately decide that inhumane treatment should be authorized for a certain category of detainees, perhaps the Times story will at the very least help to ensure that that question is subject to public deliberation, democratic decisionmaking, and the moral and practical (including international) ramifications that such a serious decision ought to entail. This Administration has talked a great deal about how it is committed to treating detainees "humanely," but all the while it has fought tooth and nail to be able to treat detainees inhumanely, i.e., in a manner that would be unconstitutional if done in the U.S. Perhaps it is absolutely right to have worked to preserve such a CIA "loophole." I don't think so; but I recognize that I may be in the minority. I simply hope that, if this--waterboarding--is being done in our name, at least we can be more forthright about what we, and our legal and moral commitments, have become.
UPDATE II: Not so fast. It appears that perhaps I was being far too pessimistic about the willingness of Americans to condemn the CIA's legally approved program of "torture-light" for suspected Al Qaeda operatives. (That is to say, I've undoubtedly been spending too much time in the blogosphere.)
According to this very recent USA Today poll (taken last week), 59% of respondents said that they would not be willing to have the U.S. government torture known terrorists even if those known terrorists “know details about future terrorist attacks in the U.S.” and the government thought such torture was “necessary to combat terrorism”! And when asked whether “you think it is right or wrong for the U.S. government to use [particular techniques] on prisoners suspected of having information about possible terrorist attacks against the United States,” respondents answered as follows:
-- Forcing prisoners to remain naked and chained in uncomfortable positions in cold rooms for several hours – WRONG, 79% to 18%
-- Having female interrogators make physical contact with Muslim men during religious observances that prohibit such contact – WRONG, 85% to 12%
-- Threatening to transfer prisoners to a country known for using torture – WRONG, 62% to 35%
-- Threatening prisoners with dogs – WRONG, 69% to 29%
-- And as for Waterboarding (“Strapping prisoners on boards and forcing their heads underwater until they think they are drowning”) – WRONG 82% to 18%
Is it clear that the mere use of CID treatment against a detainee would violate the CAT and/or ICCPR in light of the Court’s 2003 decision in Chavez v. Martinez? In Chavez, the Court seemed to hold that since the Fifth Amendment was a trial right, there could be no constitutional violation unless and until government attempted to introduce statements elicited in violation of Fifth Amendment protections at trial. Does this suggest that since the US RUDS to the CAT and ICCPR defined CID treatment in terms of conduct that would “violate” the Fifth and Fourteenth Amendments there would be no constitutional violation and, therefore, no CID treatment unless the US sought to use the detainee’s CID-induced statement at trial?
Context makes the USA Today poll findings look even stronger, as even in the immediate aftermath of 9-11, the majority of Americans were not willing to torture known terrorists if they know details about future terrorist attacks in the U.S.:
C. Torture known terrorists if they know details about future terrorist attacks in the U.S.
Willing Not willing No opinion 2005 Jan 7-9 39 59 2 2001 Oct 5-6 45 53 2
Compare that with, for example, assassinate a leader of a nation that harbors terrorists, on which the pendulum has swung from willing post-9-11 to not willing now.
B. Assassinate leaders of countries that harbor terrorists
Willing Not willing No opinion 2005 Jan 7-9 37 59 4 2001 Oct 5-6 52 45 3
Response to Thompson: Thanks for the question. In Chavez, the Court held that the *Self-Incrimination* Clause of the Fifth Amendment cannot be violated unless a coerced statement is introduced against the declarant in a criminal trual. But a majority of the Court also confrmed the 1952 holding in Rochin v. California that the Fifth Amendment's *Due Process Clause* prohibits official conduct, including custodial conduct, that "shocks the conscience." If something meets this standard, then it is also CID treatment under CAT article 16, in accord with the Senate's understanding of that treaty provision. At least three, and probably as many as five or six, Supreme Court Justices likely share the view Justice Kennedy expressed in Chavez that “a constitutional right is traduced the moment torture *or its close equivalents* are brought to bear. . . . [I]t seems . . . a simple enough matter to say that use of torture or its equivalent in an attempt to induce a statement violates an individual's fundamental right to liberty of the person." The Government has argued that if the torture (or its equivalent) is for a good, exigent-enough reason, then it *doesn't* shock the conscience. But it's not yet clear whether the Court would agree that the conduct in question here satisfies due process because of the weightiness of the government interest. And it's obvious the Administraton is not sure the COurt would agree, either -- or else they would have had virtually no need to work so hard to keep Congress from enacting the CID prohibition as applied to CIA conduct overseas.
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