Balkinization  

Friday, January 14, 2005

The White House Dissembles on Torture and the CIA's Authority to Engage in Cruel, Inhuman and Degrading Treatment

Marty Lederman

Yesterday's New York Times reported what I've been endeavoring to demonstrate for the past several days: That the Administration has worked assiduously to preserve the legal authority of the CIA to engage in highly coercive, often inhumane interrogation techniques against suspected Al Qaeda operatives at secret locations outside U.S. jurisdiction. When the Senate -- acting on the recommendation of the 9/11 Commission -- recently voted overwhelmingly to withdraw that CIA authority to employ such inhumane treatment, the White House expended a great deal of effort in the Conference Committee to preserve the status quo legal regime. They were quite candid about their objective: Dr. Rice wrote a letter to members of Congress opposing the (Durbin) provision because it would "provide[] legal protections to foreign prisoners to which they are not now entitled under applicable law and policy.'"

Not surprisingly, at today's White House press briefing, the press corps pushed Press Secretary McClellan on the issue. The resultant exchange, which I've excerpted below, is equal parts obfuscation, deceit and contempt--a true classic, even by the very high standards of modern White House Press Secretaries, and reminiscent of nothing so much as Abbott and Costello's "Who's On First?" routine. McClellan found a dozen different ways to refuse to identify exactly which legal protections the Durbin Amendment would have afforded foreign prisoners to which they are not presently "entitled."

Despite McClellan's best efforts, the answer is no longer a secret--but, contrary to some news accounts, the answer is not that the Administration was attempting to preserve a right to engage in "torture," at least as that term is defined in U.S. law. Federal criminal law already categorically prohibits torture. Therefore, the CIA may not use torture, even overseas and even against suspected Al Qaeda personnel. In this sense, the Durbin Amendment--which would have prohibited "torture"--was superfluous.

The problem, which I've tried to explain in somewhat soporific detail in posts here, here, here, here, here and here, is that Congress (at the urging of Presidents Reagan and George H.W. Bush) has defined the term "torture" exceedingly narrowly--so narrowly, in fact, that OLC has concluded it does not cover techniques such as waterboarding, threats of live burial, and threats of rendition to nations that do torture. Those forms of highly coercive interrogation, going just up to the line of "torture" without going over, are generally unlawful, not because they are "torture," but because they fall within the category of conduct denominated "cruel, inhuman and degrading ("CID") treatment," i.e., conduct that "shocks the conscience" and hence would violate due process if it occurred within the U.S. Such CID treatment is categorically off limits to the military by virtue of the Uniform Code of Military Justice and the President's directive that the military treat all detainees "humanely." Such CID treatment is also categorically prohibited -- even for the CIA -- with respect to detainees protected by the Geneva Conventions; and such CID treatment would (by definition) be unconstitutional -- even for the CIA and even as applied to Al Qaeda detainees -- here in the U.S.

But the Administration has concluded the CID treatment is not unlawful when the CIA interrogates Al Qaeda suspects outside U.S. jurisdiction. As you'll see, McClellan repeatedly "pointed to" numerous soures of law, including statutes, treaties, and a "policy" statement enacted as part of the Defense Authorization bill. What McClellan failed to note was that the Administration does not believe that any of these sources of law bind the CIA acting outside U.S. jurisdiction and outside Geneva. Thus, according to the Times (but adroitly overlooked by McClellan), the Department of Justice has advised the CIA that it may in such cases use 20 so-far undisclsoed techniques, including waterboarding, even though such techniques may be cruel, inhuman and degrading (i.e., that would be unconstitutional if used in the U.S.), because, in DOJ's judgment, they do not quite result in the level of "prolonged" pain necessary to trigger the statutory definition of "torture." (The new OLC memo on torture is careful to note that it does not call into question the legality of these previously sanctioned CIA authorities.)

The Durbin Amendment would have categorically prohibted the use of CID treament, even for the CIA outside U.S. jursdiction. But the Administration successfully worked to ensure that the Agency can continue to use such inhumane techniques when interrogating Al Qaeda suspects outside U.S. juridiction, as long as it does not cross over the line to "torture."

Excerpt from White House Press Briefing:

Q Scott, why did the White House block or muscle Congress out of adding legal protections for foreign prisoners in U.S. custody, protections against extreme interrogation measures?

MR. McCLELLAN: Well, I disagree with your characterization, first of all. I think that there were people on both sides of the aisle and in both the Senate and House that supported the view that we took, and it was a view that we stated publicly. And, of course, we are going to state privately what we state publicly.
We did not view the provision as necessary because there are already laws on the book to address these issues. There is a provision included in the Defense Authorization Act to address some of these issues. There are -- there is the Convention Against Torture. There is the -- there are criminal statutes against torture in the United States. And our policy is to comply with our laws and our treaty obligations. That's the policy of the United States.

Q If we could get down to brass tacks here, the purpose of this proposed law was to make sure that CIA interrogators have to abide by the same standards as Defense Department interrogators. And the White House didn't want that. Is that because you want CIA interrogators to be able to get rougher and tougher?

MR. McCLELLAN: We want everybody throughout the government to comply with the policy of the United States, which is to follow our laws and our treaty obligations. The President has made it very clear that we don't condone torture, and nor -- and he would never authorize the use of torture. He's made that very clear.
I just pointed to the Convention Against Torture. It addresses the treatment of detainees and the use of torture. I pointed to our criminal statutes. We have criminal statutes on the book that address these issues. There is also language in the Defense Authorization Act that addressed these issues, as well. And so we didn't view it as necessary.

Q I'm trying to get -- he doesn't condone torture. The question is, what does the President condone? And in your letter to Congress in October, the one you're referencing here, you said --

MR. McCLELLAN: That we released to you all publicly in October.

Q I recall that. Yes, indeed, it was publicly released. And I confess, I missed this line, so I'd ask you to explain it now. "The administration also opposes section 1014 of S2845 which provides legal protections to foreign prisoners to which they are not now entitled." What legal protections does the President believe foreign prisoners in U.S. country -- in U.S. custody shouldn't have?

MR. McCLELLAN: The President has made very clear what our policy is, and he expects the policy to be followed. The policy is to comply with our laws and with our treaty obligations. The criminal statutes of the United States specifically talk about -- you bring up an issue about people outside the United States -- the criminal statute of the United States specifically says that -- or imposes criminal penalties on "whoever outside the United States commits or attempts to commit torture." So there are already laws on the book that address this issue.
That's why I said that their provision -- or the provision in this legislation is something that we viewed as not necessary because it's already addressed in international treaties, in our laws, and in the Defense Authorization Act.

Q What legal protections shouldn't those prisoners have in the President's view?

MR. McCLELLAN: I just made very clear what our view is when it comes to the treatment of detainees.

Q What didn't he want --

MR. McCLELLAN: There are laws and treaty obligations that we expect them to abide by. And if you follow up the very next sentence in that letter, it says that Section 1095, which is actually Section 1091 -- that should have said Section 1091 --

Q That's why I couldn't find it.

MR. McCLELLAN: There you go, the legal mind -- of the proposed National Defense Authorization Act for fiscal year 2005 already addresses this issue. Now, let me tell you about Section 1091, while we're talking about this issue. Section 1091 says that it is the policy -- this is Part B -- "It is the policy of the United States to ensure that all personnel of the United States government understand their obligations in both wartime and peacetime to comply with the legal prohibitions against torture, cruel, inhumane, or degrading treatment of detainees in the custody of the United States."

* * * *

Q Could I just get a clarification on the foreign prisoners issue?

MR. McCLELLAN: Sure.

Q What the language said was that the legislation the administration opposed was -- would have provided legal protections to which they are not now entitled. What was it in the proposed legislation that went beyond existing law?

MR. McCLELLAN: Well, I just told you what -- the fact that the laws already cover the issues and we didn't view the provision as necessary.

Q Right, they were clearly proposing something --

MR. McCLELLAN: And we are in -- we're talking about the global war on terrorism. We are in a different kind of war. We are seeing that we face new, dangerous threats, and there are people who do not abide by the rule of law or follow the rule of law. They are people who have no regard for the rule of law; they have no regard for innocent civilians, as I talked about, and they are not parties to any of the international treaties. And we're talking about unlawful enemy combatants who seek to do harm to the civilized world and the people of the civilized world, because they espouse an ideology of hatred and oppression.

Q Was Congress trying to treat them like they were uniformed people who were entitled to congregate with other prisoners, and entitled to commissary privileges? What is it?

MR. McCLELLAN: That may well be. I can't read the mind of people who proposed this provision. But I can tell you that we already have laws on the books to cover the treatment of detainees and to cover --

Q Yes, but the point is, the letter from Condi was saying, look, we're opposed to this because you are going beyond existing law in some way that we think is inappropriate. And what I'm asking you is, what were they doing that goes beyond all of the laws you've talked about that say, you cannot torture people? What was Congress trying to add to this that goes beyond those laws?

MR. McCLELLAN: Well, again, I think that you can talk to specific members about what they were trying to do. What we're trying to do is make sure that the policies of the United States are followed, and the policies of the United States are the same as the laws that are on the books.

Q Scott, your guy wrote the letter. Why can't you just tell us what it is that Josh Bolton saw in the legislation that went beyond where you --

MR. McCLELLAN: Suzanne. I'll come back to you if I can, John. Suzanne.

Q The point you're making simply is that it's redundant? That's the only argument you're making --

MR. McCLELLAN: It's not necessary because of the reason I stated. You have the Convention Against Torture; you have the criminal statutes on the books in the United States; and you have the provision in the Defense Authorization Act to address these issues. Now, we have an obligation to do everything we can to protect the American people and we do so in a way that is consistent with our laws and our treaty obligations. That's the policy of the President of the United States. And he's made very clear what his view is when it comes to torture. We do not condone the use of torture, period; and he would never authorize torture. And he's made that very clear publicly.

Comments:

If I am correct, Mr. Lederman's argument is reducible to three main points:

1. The Administration has concluded the CID treatment is not unlawful when the CIA interrogates Al Qaeda suspects outside U.S. jurisdiction.

2. The Durbin Amendment would have categorically prohibted the use of CID treament, even for the CIA outside U.S. jursdiction.

3. Thus, the Administration opposed the Durbin Amendment.

The problem, then, that I have with both the objective tone of the New York Times article and the objective tone of Mr. Lederman is that both purport to present pure facts or pure legal analysis.

Given that a soon-to-be lame duck Administration has made policy judgments that could be different under different administrators (say, President Kerry and cohorts), that Rick Durbin is a long-standing member of the Judiciary Committee (who has much to gain if there is a change-of-guard in the Senate) and the Minority Whip in the Senate (and so would be instrumental in crafting such a change-of-guard), that a political appointee who has never been elected to office and some notable political strategists (e.g., Dick Morris, who recently worked on the Orange Revolution in Ukraine) are calling to run for President in 2008 (i.e., Condoleeza Rice), and that the New York Times has a public editor who admits that the newspaper is "liberal" and advocates in favor of gay marriage in its news coverage, I do not understand how this is an objective matter of mind-independent facts to be reported and mind-independent law to be analyzed.

This is a matter of politics, of competing visions of what American foreign policy should be, of political philosophy, of morality. It is not a matter of law and fact. Lederman's post, like the New York Times' breaking of the story, like the manuevers of the Administration are all politically-motivated. This is politics, politics, politics. It is not natural or obvious or necessary that one be outraged; there is no inherent problem with the Administration's manuevers. Scott McClellan might believe that his political manuevers are just because his ends are just; the fact that you have a different conception of justice only proves the point.

But failing to be pragmatic about things and see this as a matter of politics consigns one to being remarkably binary and casting one's political opponents as evil. Wasn't that the charge leveled against President Bush during the campaign? More to the point, didn't that tactic resoundingly fail?

The answer is "Yes."
 

Thank you, Mr. Lederman, for your excellent breakdown and analysis on this issue.

I do, though, want to take issue with CriticalObserver. The whole point of Mr. Lederman's article is not to present "pure facts" or "pure legal analysis," but to point out the deception of the Bush Administration on this point. You can call it "politics, politics, politics" if you want, but Bush's reelection was due in part to his claims to be a straight shooter and a man of integrity, a man uncorrupted by the "politics, politics, politics" of deception and trickery. The fact that the Administration feels the need to obfuscate, deceive, and prevaricate when faced with an apparent contradiction between its absolutist rhetoric regarding opposition to torture and its actions that support what essentially amounts to torture is enough to merit Mr. Lederman's work, which is essentially and only purporting to show the "fact" of this Administration's deceptive "politics."

I mean, isn't it telling, after all, that the sraight-shooting Bush can't just come out and say outright that he thinks CID treatment by the CIA on Al Qaeda suspects outside of US jurisdiction is acceptable policy, because such treatment doesn't amount to torture.
 

The points (2) and (3) you summarize from Lederman's arguments are verifiably true.

Point (1) -- administration policy allows for abuse-short-of-torture-narrowly-defined ("CID": cruel, inhuman, or degrading treatment) by the CIA abroad -- fits the facts known to us, including
1) that's what the CIA is doing
2) the 2d OLC memo, which specifically (footnote 8) says “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." So when "CID" (waterboarding etc.) came up in those prior opinions, it got a green light, and kept it with this memo.

It's trivially true that this is also a matter of politics, but things like the OLC memos are where the rubber hits the road and politics becomes policy and law: what we say is and is not right, legal, and OK to do.

The point isn't the messenger, the point is the message: if your item (1) is true, what do *you* think about it? A lot of smoke and noise about liberal bias, political agendas and whatnot seems like it's mainly a way to avoid answering that question. That's interesting.
 

"I mean, isn't it telling, after all, that the sraight-shooting Bush can't just come out and say outright that he thinks CID treatment by the CIA on Al Qaeda suspects outside of US jurisdiction is acceptable policy, because such treatment doesn't amount to torture."

Telling of what? It could confirm that he's a dirty liar, if you already believe he is a dirty liar. If, on the other hand, you believe whatever means he uses to acheive his ends are just, because you are convinced that his ends are just and that he is a good man, then it isn't lying, but rather doing what is necessary to fend off opportunistic Democratic crybabies and political hacks like Rick Durbin and yet keep Americans safe. Note: I never said this was my opinion.

"The point isn't the messenger, the point is the message: if your item (1) is true, what do *you* think about it? A lot of smoke and noise about liberal bias, political agendas and whatnot seems like it's mainly a way to avoid answering that question. That's interesting."

Point 1 is a direct quote from Lederman's column. So it's verifiably "True" also. What isn't verifiably "True" is any smoke and noise about liberal bias. I said "politics, politics, politics"; I did not say "sissy liberal politics".

The reason I pointed out that the New York Times admits it is liberal was to note how obviously political the decision to print the story was -- not to discredit the paper for having a perspective. I read the paper and enjoy it.

I also noted that Condoleeza Rice might be running for office in 2008 and that her comments might be self-interested (that would be conservative bias); and more than that I noted that Dick Morris worked on the Orange Revolution, to bolster his credibility. If I were some sort of conservative right-winger I wouldn't have thought working for the Orange Revolution makes one more credible and trustworthy.

I also called the Administration's policy judgments what they are -- policy judgments -- which is exactly what Scott McClellan calls them in the transcript; and I noted that any different view of CID for terrorists, say, by a President Kerry, would be a policy judgment too. In other words, I weighed Bush and Kerry equally. Why?

Because there isn't any objectively right answer or any objective facts one can consult or analyze to determine that what Bush and company are doing is "Wrong." That is what I object to: the pretense by Lederman, as well as by the Times, that they are reporting objective fact or analyzing objective law, when that pretense is in the service of politically-motivated advocacy. In hard situations like these, I don't think there are moral facts or there is law -- there is simply discretion to make policy judgments. So we should be fair when we have moral beliefs or policy preferences and disclose them to our audience.

Whether you think Bush and company are "deceptive" is a matter of whether you think their ends are just. You apparently think what Bush is doing is immoral, beyond the pale of fair politics, and so illegal. I congratulate you for having an opinion.

And yet failing to analyze Bush's actions, Rice's actions, Durbin's actions, et al, as political -- instead focusing on them as discrete legal matters -- is imprecise at best. Failing to note that Lederman's actions or the New York Times' actions are politically-motivated is uncritical.

I was making a critical observation. I actually don't have an opinion one way or the other on what Bush has done or what Durbin intended to do. But that fact that you see conservative bias in my criticism only further proves my point: that some people uncritically view reality through the lens of their political biases; and apparently so did Lederman and the New York Times. At least the New York Times' public editor admits that the paper in general is liberal; Mr. Lederman pretended his analysis was purely legal.

I suppose Armstrong Williams will be writing for Balkinization next.
 

Delay in Gonzales' ConfirmationNan Aron, President of Alliance for Justice says:

“The Senate Judiciary Committee will likely hold a vote on the nomination of Alberto Gonzales soon after the inauguration.” Ms. Aron stated that two issues have delayed the SJC’s vote:
1) Mr. Gonzales’ evasive testimony during the SJC’s January 6th hearing – he “failed to answer critical questions about whether the president has the power to authorize his subordinates to violate U.S. criminal laws and torture detainees (a blueprint for dictatorship), and he did not explicity repudiate waterboarding and other interrogation techniques that amounted to torture;” and
2) Bush administration stonewalling on documents – “… the White House has still not released documents necessary to evaluate Gonzales’ role in formulating policies relating to the treatment of detainees and the applicability of the Geneva Conventions.”

Add to this Gonzales' role as consultant in defining the limits of torture allowed by the CIA.
 

Nan Aron is about as unbiased as C. Boyden Gray or Ralph Neas. Which is not to say that all do not speak the truth at times. But their motives for speaking and the facts they choose to present and the order in which they present them is inextricably tied to their political aims. Ms. Aron runs a political organization that seeks to acheive a clearly defined ideological objective. That only underscores that she is not an objective presenter of the facts, but someone supplying her audience with facts geared to persuade them to assist her achieve her political aims. While it is true that a research scientist's desire to stamp out AIDS is part of his motive for encouraging use of contraceptives -- and his bias against the virus that causes the syndrome isnt a reason to disregard his advice -- a virus is actually a virus, and that viruses cause harm is not a matter of ideology. Whether what Gonzalez did is wrong or harmful or evil or illegal is a matter of ideology: so being suspect of Nan Aron's motives is appropriate if one believes that information should be analyzed critically.
 

Regarding:

“...I noted that any different view of CID for terrorists, say, by a President Kerry, would be a policy judgment too. ... [T]here isn't any objectively right answer or any objective facts one can consult or analyze to determine that what Bush and company are doing is ‘Wrong.’”


Objective facts can become obscured when language is imprecise. While blogger-language -- as a format -- is perhaps inherently imprecise, I am deeply offended and resent whenever the mainstream media outlets make the type of error committed above, i.e. "CID for terrorists". This, of course, is a blatant falsehood. Precisely, this phrase should read: "CID for persons SUSPECTED of being terrorists." [emphasis added.]

Given (1) that the public record shows numerous innocent persons now released from U.S. detention facilities have been wrongly detained and abused, and given (2) that the Administration has recently suggested that detainees may be imprisoned for their natural life where a lack of evidence renders lawful conviction impossible, there can be no doubt among those who believe in the rule of law and believe in the American-style democracy that the Bush Administration CID policy is objectively wrong.

To conclude there is no "objectively right answer" is possible only by fudging the FACT that suspects and convicts are two different things under U.S. law and the U.S. Constitution.
 

Regarding:

“...I noted that any different view of CID for terrorists, say, by a President Kerry, would be a policy judgment too. ... [T]here isn't any objectively right answer or any objective facts one can consult or analyze to determine that what Bush and company are doing is ‘Wrong.’”


Objective facts can become obscured when language is imprecise. While blogger-language -- as a format -- is perhaps inherently imprecise, I am deeply offended and resent whenever the mainstream media outlets make the type of error committed above, i.e. "CID for terrorists". This, of course, is a blatant falsehood. Precisely, this phrase should read: "CID for persons SUSPECTED of being terrorists." [emphasis added.]

Given (1) that the public record shows numerous innocent persons now released from U.S. detention facilities have been wrongly detained and abused, and given (2) that the Administration has recently suggested that detainees may be imprisoned for their natural life where a lack of evidence renders lawful conviction impossible, there can be no doubt among those who believe in the rule of law and believe in the American-style democracy that the Bush Administration CID policy is objectively wrong.

To conclude there is no "objectively right answer" is possible only by fudging the FACT that suspects and convicts are two different things under U.S. law and the U.S. Constitution.
 

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