Balkinization  

Wednesday, May 11, 2005

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.

Comments:

I really have a hard time with the whole movement to sabatoge this administration by whatever means available. We are fighting a REAL enemy that knows no boundaries in their tactics because they know that THIS IS A WAR. Whoever fired the first shots is irrelevant; but if you are asking me to question the techniques of interrogators of known combatants, NO DICE! I can think of literally thousands of examples where extracting information from an individual may lead to saving US soldiers lives, and I will not cry over how that information is gleened.
 

BluesBravo: I can think of an infinite number of instances in which being a country that DOESN'T torture people can save soldier's lives, or at the very least prevent them from being tortured. Yes, the terrorists are wily, and it's a "new kind of war". But intelligence gathering and interrogation techniques that do not resemble the dark ages have proven as, or more effective.

If you torture your enemy when you take them prisoner, the enemy will have fewer qualms about torturing the people they capture.
Don't think for one second that this is the last war the US will be involved in.

Trying to justify torture is a huge step backward, strategically and morally. This shouldn't even be a debate, damn it.
 

What I don't understand is why you liberal law professors want us to believe that you have any agenda other than harassing and demoralizing the American military. Do you really think that those crocodile tears fool us? Do you really think we (patriotic Americans and no you are not one) are that stupid?
 

i am sick and tired of self-righteous people proclaiming themselves to be true americans, and those who question any aspect of this administration as anti-soldier, anti-military, anti-american, etc. last time i looked, the constitution of this country stated that you can question the motives and the actions of the government and the military. i believe that is the heart of the first amendment. isn't that what i keep reading our soldiers are fighting to protect?

the right to question is fundamental to this society. ignorant clap trap about being unpatriotic when you question something that you believe to be wrong is, at the heart of what is supposedly american, pure baloney.

i do not consider myself to be particularly liberal, but i certainly do not consider myself to be a conservative yahoo. i have a son serving proudly in the military, and i could not be more proud of him for it. my son is not demoralized when somebody questions the morality and soundness of judgment of some of our leaders or their decisions. he understands the right of a free society to ask such questions. others, obviously do not.

finally, i would note the old saying that patriotism is the last refuge of a scoundrel. i would greatly appreciate seeing the last of this nonsense.
 

"if you are asking me to question the techniques of interrogators of known combatants, NO DICE!"

Well then, how about torturing innocent persons? Any DICE on that one?
 

Here are excerts from the Wall street Journal's comment on the Newsweek fiasco. The same goes for academics and you too phg:

REVIEW & OUTLOOK

Journalists and the Military
Newsweek's explosive allegation was no "honest mistake."

Tuesday, May 17, 2005 12:01 a.m. EDT

Newsweek deserves credit for coming clean about its dubious Koran desecration story in an attempt to head off further bloodshed. Already its "Periscope" report last week that U.S. interrogators at Guantanamo Bay flushed a copy of the holy book down a toilet has touched off riots throughout the Islamic world, resulting in at least 17 deaths, and added yet another weapon to al Qaeda's recruiting arsenal since many Muslims won't believe the retraction. ...

The more consequential question here, it seems to us, is why Newsweek was so ready to believe the story was true. The allegation after all repudiated explicit U.S. and Army policy to treat Muslim detainees with religious respect, including time to pray, honoring dietary preferences and access to the Koran. Yet the magazine readily printed a story suggesting that what our enemies claim about Guantanamo is essentially true. Why?

Our own answer is that this is part of a basic media mistrust of the military that goes back to Vietnam and has shown itself with a vengeance during the Iraq conflict and the war on terror. Long gone are the days when AP's Ernie Pyle--an ace reporter by the standards of any era--could use the pronoun "we" in describing the Allied struggle against the Axis. In its place is a kind of permanent adversary media culture that goes beyond reporting the war news--good or bad as it should--and tends to suspect the worst about the military and American purposes.

The best example of this mentality has been the coverage of Abu Ghraib, which quickly morphed from one disgusting episode into media suspicion of the motives and morals of the entire military chain of command. Certainly the photos of sick behavior on the nightshift by a unit from the Maryland Army Reserve were news. But they were first exposed by the Army itself, through the Taguba investigation that was commissioned months before the photos were leaked.

The press corps nonetheless spent weeks developing a "torture narrative" that has since been thoroughly discredited, both by the independent panel headed by former Defense Secretary Jim Schlesinger and by every court martial to look at the matter. But rather than acknowledge that perhaps the coverage had been wrong, the media reaction has been to declare the many probes to be part of a wildly improbable cover-up. ...

We aren't saying that reporters shouldn't be skeptical, and they certainly have a duty to report when a war is going badly. Where the press corps goes wrong is in always assuming the worst about military and government motives. Thus U.S. intelligence wasn't merely wrong about Saddam Hussein's WMD, it intentionally "lied" about it to sell an illegitimate war. Thus, too, an antiwar partisan named Joe Wilson with a basically unimportant story about uranium and Niger is hailed as a truth-telling whistle-blower. And reports from Seymour Hersh in late 2001 that the U.S was losing in Afghanistan set off a "quagmire" theme only days before the fall of the Taliban. The readiness of Newsweek to believe a thinly sourced allegation about the Koran at Guantanamo is part of the same mindset.

We have all been reading a great deal lately about both the decline of media credibility, and the decline of both TV news viewership and newspaper circulation. Any other industry looking at such trends would conclude that perhaps there is a connection. Certainly a press corps that wants readers to forgive its own mistakes might start by showing a little more respect and understanding for the men and women who risk their lives to defend the country.
 

oh, poor robert schwartz. he quotes the nuttiest Op-Ed page in the country, and expects it to be taken seriously as evidence backing up his position. Well, it works in freeperland....

I love that the right continues to slam Newsweek even after the Defense Dept. itself has admitted that Koran abuses did occur. (My favorite Defense explanation ever has to be the "pee ACCIDENTALLY came through an air vent and landed on a detainee's Koran!" Yeah, right--an "accident.")

Time for this flaming, reality-based liberal to get back to "hating America"!
 

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