Has Congress Prohibited "Torture Light"?

Marty Lederman

Article 16 of the Convention Against Torture requires the United States 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.”

In a series of posts on this blog back in January (see, for example, here, here, here, here, here, here, here, here, and here), I tried to show that the Administration construes current law, including Article 16, not to prohibit the CIA from engaging in what might be called “torture light” against aliens detained overseas—that is, to permit the CIA to engage in interrogation techniques, such as waterboarding and threatening the death of loved ones, that (in the Administration’s view) do not quite rise to the level of “torture” as that word is defined under current law—and to do so even where such conduct would “shock the conscience,” and thus be unconstitutional, if performed here in the U.S.

Senator Durbin (along with some of his colleagues on the Senate Judiciary Committee) has been working tirelessly to close this “loophole.” He sponsored an amendment to last year’s Intelligence Reform bill that would have attempted to prohibit all U.S. personnel from engaging in such conduct anywhere in the world, and the Senate overwhelmingly passed the amendment. But in this letter from Condoleeza Rice and Josh Bolten (see bottom of page 8), the Administration opposed the Durbin Amendment because it “would have provided legal protections to foreign prisoners to which they are not now entitled," and the Administration “persuaded” the conferees to strip the provision from the bill before final enactment of the law.

Today’s New York Times reports on the imminent enactment of a different Durbin amendment addressed to the same problem:

Congress barred the government on Tuesday from using any money in a newly passed emergency spending bill to subject anyone in American custody to torture or "cruel, inhuman or degrading treatment" that is forbidden by the Constitution. Proponents said the little-noticed provision, in an $82 billion bill devoted mostly to financing military operations in Iraq and Afghanistan, amounted to a significant strengthening of current policies and practices in the treatment of prisoners.

* * *

The administration, which helped defeat efforts to include antitorture restrictions in legislation last year, said it did not oppose the provision in the new military operations bill. The Senate passed that bill on Tuesday by a vote of 100 to 0, after approval by the House last week, and the administration indicated that President Bush would sign it into law.

* * *

Elisa Massimino, the Washington director of Human Rights First, formerly the Lawyers Committee for Human Rights, said the Congressional ban served to remove an important exemption claimed by the administration in its treatment of foreign prisoners.

At hearings on his confirmation as attorney general, Alberto R. Gonzales said the administration, backed by the courts, held that foreign prisoners "enjoy no substantive rights" under the Constitution or the Convention Against Torture, a United Nations agreement.

But the measure approved Tuesday drew no distinction between American citizens and foreign prisoners in forbidding cruel, unusual or inhuman treatment that is prohibited by the 5th, 8th and 14th amendments to the Constitution.

Ms. Massimino said the exemption cited by Mr. Gonzales was "a pretty big loophole, and this measure in Congress is a step toward herding the administration back toward the rule of law."

Unfortunately, this new measure is not what it seems. It is extremely well-intentioned, and it might “send a signal” of sorts—but it does not remove the loophole that permits the CIA to engage in conscience-shocking treatment of aliens overseas, which is no doubt why the Administration is more than happy to have the President sign it. [UPDATE: The President signed the bill on Wednesday; and he made no mention of the Durbin Amendment in his signing statement.]

Here's the text of the provision:

SEC. 1031. (a)(1) None of the funds appropriated or otherwise made available by this Act shall be obligated or expended to subject any person in the custody or under the physical control of the United States to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States.

(2) . . .

(b) As used in this section-
(1) the term "torture" has the meaning given that term in section 2340(1) of title 18, United States Code; and
(2) the term "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the fifth amendment, eighth amendment, or fourteenth amendment to the Constitution of the United States.

There are two respects in which this law falls short of fixing the CIA problem:

First, the bill’s definition of “cruel, inhuman or degrading treatment” is the same definition that the Senate insisted upon when it ratified Article 16 of the Convention Against Torture. We now know that the Administration reads this definition not only to incorporate the substantive requirements of the Fifth Amendment (prohibiting conduct that “shocks the conscience”), but also to incorporate any geographical restrictions that apply to the Fifth Amendment. In particular, as the Department of Justice recently explained to Senators Leahy, Feinstein, and Feingold, the Administration takes the view that (i) the Fifth Amendment does not protect aliens who are in the custody of the U.S. overseas, and therefore, (ii) neither does Article 16. Both of these premises are highly contestable. (Indeed, one federal judge recently rejected the Administration’s view that the Due Process Clause does not protect aliens overseas. That ruling will soon be reviewed by the U.S. Court of Appeals for the D.C. Circuit in an extremely important case that I discuss further here.) But whether they are right or wrong, the Administration believes them, and therefore they currently govern the way the CIA does business overseas. The new statutory amendment would not change this definition, and presumably the Administration would construe it in the same tortured way that it construes Article 16—namely, not to protect aliens detained overseas.

Second, whatever its definitional scope, it is far from a categorical prohibition. The restriction applies only to "the funds appropriated or otherwise made available by this Act"—namely, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. Thus, it does not restrict the CIA from using other appropriated funds to subject aliens overseas to any sort of interrogation techniques.

In sum, there is very good reason the President will eagerly sign this bill—namely, that it will not affect business as usual, but will instead (at most) recapitulate current legal restrictions that the Administration construes not to apply to CIA interrogation of aliens overseas. (When he introduced the amendment, Senator Durbin acknowledged its modest effect: “I am not putting in any new language, new ideas. I am restating existing law that governs the conduct of Americans. It is limited to the torture or cruel and inhuman or degrading treatment ‘that is prohibited by the Constitution, laws or treaties of the United States.’ In other words, it prohibits conduct already prohibited under U.S. law. It simply restates it. It is important we do restate it.” 151 Cong. Rec. S3976 (Apr. 20, 2005).)

Indeed, the Administration no doubt is thrilled to have this bill trumpeted across the pages of the New York Times, because even though it does not restrict the CIA’s "torture light" overseas, it does give the Administration one further opportunity to hide the ball while grandstanding about how unequivocally it is opposed to torture. (An Administration spokesperson is quoted in the Times as saying that the President will sign the bill because “[t]he president has made clear that this administration does not condone torture. . . . That is administration policy, and that still stands.")

It will be a serious mistake if Senators and others are lulled into thinking that they have solved this particular problem. In light of what we now know about the Administration's reading of current law, what is needed (at a minimum) is a very simple statute providing in no uncertain terms that no U.S. person, employee, official, officer, contractor or agent may, anywhere in the world, subject any other person (including alien detainees) to conduct that would, if performed in the United States, shock the conscience or otherwise violate the fifth amendment, eighth amendment, or fourteenth amendment to the Constitution of the United States. (What do you think are the odds the President would sign that one?)

Until such a law, or its equivalent, is enacted—or until the Supreme Court holds that alien detainees overseas are entitled to substantive rights under the Due Process Clause—the Administration presumably will continue to permit the CIA to engage in conduct just short of torture overseas, even where such conduct would violate the Constitution if performed domestically.
Posted 6:03 AM by Marty Lederman [link]