Balkinization  

Tuesday, January 25, 2005

More Responses from Judge Gonzales

Marty Lederman

Judge Gonzales has submitted responses to supplememtal questions from Senators Feinstein, Leahy and Kennedy.

Here are some of the highlights:

1. In the post immediately below, and elsewhere, I've wondered how Secretary Rumsfeld, General Counsel Haynes, and other high-ranking DoD officials could have determined -- as they did -- that techniques such as waterboarding, forced nudity, threatening the death of family members, use of dogs to induce stress, etc., could possibly be lawful in light of (i) the Uniform Code of Military Justice; (ii) the prohibition in Article 16 of the Convention on Torture against cruel, inhuman and degrading treatment; and (iii) the President's February 2002 directive that the Armed Forces treat all detainees "humanely."

Well, we still don't know why the UCMJ doesn't apply. But we learned from Judge Gonzales's earlier responses that the Administration does not think Article 16 applies in U.S. facilities overseas (such as Guantanamo). And now we learn why the President's "humaneness" directive is no obstacle to the use of such grotesque techniques. Judge Gonzales writes that "the term 'humanely' has no precise legal definition," but that, "[a]s a policy matter, I would define humane treatment as a basic level of decent treatment that includes such things as food, shelter, clothing and medical care. I understand that the United States is providing this level of treatment for all detainees." If I'm understanding his answer correctly, Judge Gonzales is suggesting that by requiring the Armed Forces (but not, recall, the CIA) to provide "humane" treatment at a minimum, the President merely meant that detainees must be afforded "decent treatment that includes such things as food, shelter, clothing and medical care." Beyond that, apparently they can be waterboarded, they can be threatened with the death of their loved ones, dogs can be used to prey on their fears -- and even the clothing that is otherwise part of the basic "decent treatment" can be stripped from them for certain periods -- all without implicating the presidential directive. Defining humaneness down.

2. Senator Leahy asked straight-out whether Judge Gonzales agrees that the President may not use his Commander-in-Chief authority to "override" the torture statute and to "immunize the use of torture." The response: "No." (Followed by the standard assurance that "the United States will not use torture in any circumstances.") But if our Commander-in-Chief reserves the right -- theoretically, of course -- to immunize the use of torture under U.S. law, doesn't that assertion of Executive power invite Commanders-in-Chief of other nations to invoke a similar authority when they are of the view that emergency circumstances call for torture?

3. Judge Gonzales conveys the Administration's decision to refuse to provide Congress with numerous requested Executive branch documents concerning the treatment of detainees, even though: the Administration provided the 9/11 Commission with equally sensitive materials; the Administration has selectively made public other internal documents on the same subject matter; and the President has not invoked Executive privilege. Judge Gonzales states that "it is generally not the practice of this or prior Administrations to provide all documents requested by a Member of Congress where those documents contain highly deliberative or Preisdential communications." Depending on the meaning of the strange phrase "highly deliberative," this "practice" might, of course, threaten to eviscerate Congress's oversight role. May an Administration withhold from Congress all Executive branch deliberative materials that the President deems "highly deliberative," even where there is no claim of Executive privilege (and regardless of whether the documents are even classified)? This is a very important question.

4. In light of the Administration's conclusion that Article 16 of the CAT does not protect aliens overseas, Senator Feinstein asked Judge Gonzales wheher he believes Congress should pass a law to categorically outlaw cruel, inhuman and degrading treatment of aliens overseas. As I've noted in previous posts, the Administration has strongly resisted such legislative efforts in recent months. Notably, however, Judge Gonzales agrees "as a general matter" that it would be "appropriate" for the U.S. to enact such a statutory prohibition, if Congress could "surmount the considerable hurdles that would be faced by attempting to articulate a working definition of 'cruel, inhuman, or degrading treatment.'"

Please indulge me a modest attempt to "surmount the considerable hurdles" by proposing that Congress enact the following law: "It shall be unlawful for any U.S. employee, officer, or agent, anywhere in the world, to engage in conduct that would, if it occurred in the United States, 'shock the conscience' and thereby violate the Due Process Clause of the Fifth Amendment to the Constitution."

This would not resolve all definitional ambiguity. There remains some uncertainty about just which forms of conduct "shock the conscience" for purposes of the Due Process Clause. But there is an established and developing body of judicial case law on this question, and such an evolving constitutional doctrine could guide the interpretation of the statute I propose. The basic premise of the statute would be a simple one: The standards for treatment of a detainee should not turn on whether the United States decides to transport the detainee to Guantanamo, or to a secret foreign CIA facility, rather than to Puerto Rico or to South Carolina.

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