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
For those who are interested in the legal details, here’s a brief look at the numerous other possible sources of law that, some might argue, may restrain the conduct of CIA interrogations of suspected Al Qaeda operatives outside U.S. jurisdiction, with an explanation of why the Administration has (or has likely) concluded that each source of law is inapposite in the context of the CIA interrogations in question. (Readers uninterested in the legal details can skip ahead to the final couple of paragraphs, below.)
1. The Eighth Amendment. Prohibits cruel and unusual punishment.
Not applicable here because: (i) The Administration contends that the Constitution does not protect aliens overseas; and (ii) these interrogations do not involve punishment, as such.
2. The Due Process Clause of the Fifth Amendment. Prohibits conduct that “shocks the conscience.” At least three, and probably as many as five or six, Supreme Court Justices likely share the view Justice Kennedy expressed in 2003 in Chavez v. Martinezthat “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."
Not applicable here because: In the Administration’s view, the Due Process Clause of the Fifth Amendment does not of its own accord provide any constitutional rights to aliens overseas—including the right not to be treated in a manner that shocks the conscience. (This is a very hotly contest legal question right now because of footnote 15 of the Supreme Court’s recent decision in Rasul; and it is currently being litigated in the Guantanamo habeas cases being considered in the U.S. District Court for the District of Columbia in the wake of Rasul.)
3. The Uniform Code of Military Justice. Prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134). Senator Graham focused on this yesterday—he questioned why OLC was bothering to construe the torture statute so narrowly when the UCMJ obviously imposes much more stringent limitations.
Not applicable here because: The UCMJ does not apply to the CIA.
4. President’s February 7, 2002 “Humane Treatment” Directive. Requires that the Armed Forces must “treat detainees humanely.”
Not applicable here because: The directive is carefully worded so as to apply only to the Armed Forces, and not to the CIA.
5. Third (POW) Geneva Convention, Article 17. Prohibits all coercive, unpleasant and disadvantageous treatment of POWs: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”
Not applicable here because: The Administration has concluded that Al Qaeda is not a contracting party and thus that Al Qaeda detainees are not POWs protected by article 17.
6. Fourth (Civilian) Geneva Convention, Article 27. Requires that protected persons “shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”
Not applicable here because: The Administration has concluded that the Civilian Convention applies only to “civilian non-combatants” and that alleged Al Qaeda detainees do not qualify because they are “unlawful combatants.”
7. Common Article 3 of the Geneva Conventions. Provides that “[i]n 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: (1) Persons 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, shall in all circumstances be treated humanely, [and] the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; . . . (c) outrages upon personal dignity, in particular humiliating and degrading treatment.”
Not applicable here because: The President has determined that common Article 3 does not apply to the war against Al Qaeda because the conflict is “international in scope.”
8. Protocol I to the Geneva Conventions, Article 75. Provides that “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances,” that “[e]ach Party shall respect the person, honour, convictions and religious practices of all such persons,” and that “[t]he following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation; (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; . . . and (e) threats to commit any of the foregoing acts.”
Not applicable here because: The U.S. has refused to ratify Protocol I.
9. Convention Against Torture, Articles 1, 2 and 4. Requiring signatory parties, such as the U.S., to ensure that all acts of torture (and attempts to commit torture and complicity or participation in torture) are offenses under its criminal law, and to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction, without permitting any “exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency,” or superior orders, to be invoked as a justification of torture.
Not independently applicable here because: The Senate ratified the CAT subject to certain restrictive understandings and reservations of the definition of "torture" in these articles, which were incorporated in the narrower definition of “torture” in the federal criminal statute. These articles therefore establish a binding norm only with respect to “torture” as it is narrowly defined in 18 U.S.C. §§ 2340-2340A (see No. 17, below).
10. Convention Against Torture, Article 16. This is the provision on which Prof. Dorf focuses. It requires each state party, such as the U.S., to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." The U.S. ratified article 16 subject to the understanding that this article refers only to conduct that would violate the Fifth, Eighth and Fourteenth Amendments—for present purposes, conduct that would “shock the conscience” under Due Process Clause standards.
Not applicable here because: The CIA is not acting “in any territory under [U.S] jurisdiction,” but is instead interrogating detainees in foreign jurisdictions. In other words, when the CIA takes detainees into foreign jurisdictions and engages in coercive interrogations there—even interrogations that would be unconstitutional here in the United States—it need not worry about whether article 16 applies. [The Bush Administration might also argue that the conduct in question does not shock the conscience in light of importance of the asserted government objective—viz., obtaining valuable intelligence in the war on terror. This would be a highly contested, and risky, proposition. In his hearing, Judge Gonzales also hinted at another rationale: that because the Constitution itself does not (in the Administration’s view) provide aliens outside the U.S. with any substantive constitutional rights, then article 16 (which is construed in accord with the Constitution) likewise does not provide any substantive protections outside the U.S. (a theory that, if correct, would appear to render article 16 inoperative at Guantanamo, too).]
11. International Covenant on Political and Civil Rights, Article 7. Provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The U.S. also ratified this subject to a limiting reservation that, for present purposes, limits the Article to cover only conduct that “shocks the conscience.”
Not applicable here because: According to the DoD Working Group Report (at page 6), the U.S. “has maintained consistently that the Covenant does not apply outside the United States or its special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict”—even though such limitations do not appear in the provision itself (in contrast to article 16 of the CAT), and even though there is some international law precedent to the contrary. Presumably the U.S. position that the Covenant does not apply extraterritorially is based upon Covenant Article 2.1, which states that "[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.”
12. Customary International Law. Some contend that CIL prohibits all cruel, inhumane and degrading treatment.
Not applicable here because: The U.S. has long asserted that CIL does not bind the Executive Branch, even where the Executive Branch has historically opted to act in accord with CIL standards.
13. Common Law of the “Law of Nations” Enforced Via the Alien Tort Statute, 28 U.S.C. § 1350. The Supreme Court recently held in Sosa v. Alvarez-Machain that Congress intended to permit the Alien Tort Statute to be used to enforce a “modest number” of common-law claims based upon “norms of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms” of violation of safe conducts, infringement of the rights of ambassadors, and piracy.”
Not applicable here because: Before the decision in Sosa, the Administration argued that the ATS cannot be used to enforce any common-law CIL claims. After Sosa, presumably the Administration would argue that cruel, inhuman and degrading treatment against aliens overseas that falls short of what U.S. criminal law defines as “torture” is not “defined with a specificity comparable” to the three 18th-century torts identified in Sosa, and thus does not constitute a legal norm that Congress has recognized as binding and enforceable through the ATS. Obviously, this is a highly contestable proposition—but one that almost certainly will not be seriously challenged until a detainee actually litigates such an ATS claim.
14. Durbin Amendment to the 2005 DoD Authorization Act. Would have categorically provided that “[n]o person in the custody or under the physical control of the United States shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States.”
Not applicable here because: Although the Senate voted unanimously in favor of the bill that included this prohibition, it was stripped out in Conference and replaced with boilerplate “sense of the Congress" and "U.S. Policy" provisions, which appear as subsections 1091(a)(8) and (b)(1) of the final bill as enacted.
15. 2005 DoD Authorization Act, Section 1091(b)(1). Provides that “[i]t is the policy of the United States to—ensure that no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States." (Similarly, at his hearing, Judge Gonzales stated that “it is not the policy of the administration to tolerate torture or inhumane conduct toward any person that the United States is detaining.”)
Not binding here because: The Executive Branch has traditionally construed such “policy of the U.S.” provisions (and "sense of the Congress" provisions) as hortatory and as thus not establishing supreme law of the land binding the Executive.
16. Durbin Amendment to the Intelligence Reform Act of 2004. The 9/11 Commission recommended that the U.S. develop policies to ensure that all captured terrorists be treated humanely. The Intelligence Reform bill that the Senate approved would have done so: It included a Durbin Amendment that would have expressly applied the prohibition on cruel, inhuman and degrading treatment to the intelligence community.
Not applicable here because: The House Conferees (presumably with the support of DoD), insisted on deleting that prohibition in the final bill that the President signed last month.
17. The Federal Torture Statute: 18 U.S.C. §§ 2340-2340A. Finally, we come to the singular subject of the OLC Opinions. This criminal statute provides that it shall be unlawful for anyone outside the United States to commit, attempt to commit, or conspire to commit, torture. Torture is defined as an act “committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control”; and the statute in turn defines ''severe mental pain or suffering'' to mean “the prolonged mental harm caused by or resulting from - (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.”
This criminal statute is applicable to CIA interrogations of aliens outside U.S. jurisdiction. Accordingly, the function of the OLC Opinions is to address this statute—a prohibition that is, in the Administration's view, the only legal constraint on CIA interrogations committed against aliens outside U.S. jurisdiction.
* * * *
I don’t mean to suggest that the Administration is necessarily wrong about the inapplicability of any of the other legal norms against inhumane and coercive treatment that I’ve identified above. Indeed, the Administration is almost certainly correct that the majority of those legal constraints do not apply to CIA interrogation of suspected Al Qaeda operatives outside U.S. jurisdiction. And although there are very serious debates about some of the Administration legal positions described above, I think it would be hard to say conclusively that the Administration is obviously wrong on any of them.
But even if the Administration is wrong as to one or more of them, the point I’m trying to establish here is simply that—contrary to the impression it is trying to convey to Congress and the public—the Administration has likely concluded that the CIA is not bound by any of these restrictions on cruel, inhuman and degrading treatment. Thus, on this view, as to CIA interrogation of Al Qaeda suspects outside U.S. jurisdiction, the torture statute is the whole ballgame, and inhumane conduct that falls short of "torture"—i.e., conduct that is, in the words of the Levin Opinion (p.6 and n.14), a “lesser form,” rather than an "extreme form,” of cruel, inhuman and degrading treatment—is legally permissible.
With this in mind, it becomes clear that perhaps the most important part of the new Levin Opinion is footnote 8, which reads: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." In other words, despite its admirable and considerable repudiation of the 2002 OLC Opinion, the new OLC Opinion does not in any significant way affect what the CIA has already been specifically authorized to do. And the Administration has concealed from the public (and perhaps from the Congress, too?) the extreme forms of interrogation—just short of the strict statutory standard of “torture”—that the CIA presumably is authorized to use upon detainees overseas.
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