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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of the more interesting, and disheartening, things about the interrogation of Mohammed al-Qahtani at Guantanamo in 2002-2003 -- the official log of which is examined in detail in this week's Time Magazine -- is that the military appears to have been fully aware that the techniques it was employing were unlawful. The Pentagon's efforts to provide legal justification for its activities are quite revealing.
As I've previously explained, there are numerous legal norms that could potentially have applied to the interrogation techniques employed at GTMO. The four most important potential constraints were:
(i) the Geneva Conventions;
(ii) Article 16 of the Convention Against Torture, which requires 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";
(iii) the President's February 7, 2002 directive that the Armed Forces must treat al Qaeda and Taliban detainees "humanely";
and (iv) the Uniform Code of Military Justice (UCMJ).
The first obstacle was largely overcome when the President decreed that suspected al Qaeda and Taliban detainees are not POWs and are not entitled to any of the protections of the Geneva Conventions. In my view, the most important component of this determination was one that was made quietly, largely outside public purview: The Administration determined that Common Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment," does not apply by its terms to our conflicts with al Qaeda and the Taliban; and, more importantly, it appears that the Administration also determined that it would not uniformly apply the standards of Common Article 3 as a matter of policy, thereby deviating from more than a half-century of U.S. practice.
I explained yesterday that the President's "treat humanely" directive is hardly an obstacle at all, because the Pentagon is of the view that "humane" treatment includes, for example, giving a detainee three and a half bags of IV fluid and then refusing to grant him permission to urinate; using dogs "in an aggressive manner to intimidate the detainee"; and forcing a detainee to stand nude, bark like a dog and growl at pictures of terrorists.
That brings us, finally, to the Uniform Code of Military Justice -- which is the most difficult-to-crack part of the legal puzzle. The UCMJ is a federal statute that 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). The UCMJ plainly prohibits many of the techniques the military used against al-Qahtani -- and (as explained below) the Pentagon acknowledged as much -- but the military did not let the UCMJ stand in the way. Why? What was the legal theory according to which the Pentagon could blithely ignore binding U.S. law?
Frustrated that detainees at GTMO, especially al-Qahtani, "have tenaciously resisted our current interrogation methods," on October 25, 2002 General James Hill forwarded to the Pentagon, for its review, proposed "counter-resistance techniques." Although General Hill was "uncertain whether all the techniques . . . are legal under US law," he expressed his "desire to have as many options as possible at my disposal and therefore request that Department of Defense and Department of Justice lawyers review" some of the techniques.
The proposed techniques included many that were eventually used on al-Qahtani, including forced nudity, forced grooming, "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress," 20-hour interrogations, stress positions, and the use of mild physical contact such as grabbing, poking and light pushing. The proposed techniques also included waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."
"U.S. military personnel are subject to the Uniform Code of Military Justice. The punitive articles that could potentially be violated depending on the circumstances and results of an interrogation are: Article 93 (cruelty and maltreatment), Article 118 (murder), Article 119 (manslaughter), Article 124 (maiming), Article 128 (assault), Article 134 (communicating a threat, and negligent homicide), and the inchoate offenses of attempt (Article 80), conspiracy (Article 81), accessory after the fact (Article 78), and solicitation (Article 82). Article 128 is the article most likely to be violated because a simple assault can be consummated by an unlawful demonstration of violence which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm, and a specific intent to actually inflict bodily harm is not required."
Beaver then notes, almost in passing, that physical contact with a detainee "will technically constitute an assault under Article 128, UCMJ." In an earlier paragraph, Beaver is still more candid in acknowledging that physical contact, as well as the "water cure" version of waterboarding, "would constitute a per se violation of Article 128 (Assault)," and that threats of death "may also constitute a violation of Article 128, or also Article 134 (communicating a threat)."
Well, then, if some of the proposed techniques are acknowledged to be "per se" federal crimes, how is it that Beaver can then recommend their use and (in a cover memo) conclude that they "do not violate applicable federal law"? Here's the only clue: She writes that because of the "per se" prohibitions of the UCMJ, "[i]t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods." No explanation here of the legal theory pursuant to which such ex ante "permission or immunity" to violate the law could be conferred.
As Beaver's memo went up the chain of command, it appears that virtually everyone (with the possible exception of General Hill, who expressed some legal trepidation) agreed with Beaver's conclusion that the UCMJ somehow would be no obstacle -- perhaps because they assumed that interrogators would be provided some sort of "permission or immunity in advance from the convening authority." Major General Michael Dunleavy concluded "that these techniques do not violate U.S. or international laws." Similarly, DoD General Counsel Haynes, following discussions with Deputy Secretary Wolfowitz, Doug Feith and General Myers, informed Secretary Rumsfeld that all of the proposed techniques "may be legally available." (Haynes also advised that, for policy reasons, "a blanket approval" of waterboarding and threats of death "is not warranted at this time.")
These legal understandings of the UCMJ continued into the spring of 2003, as the DoD was producing its comprehensive Working Group Report. That report, however, is much more revealing about the possible legal basis for giving interrogators "permission or immunity" in advance to violate federal law. The final report, promulgated on April 4, 2003, acknowledges that assault and maltreatment are offenses under the UCMJ, but adds that "[d]efenses relating to Commander-in-Chief authority, necessity and self-defense or defense of others may be available to individuals whose actions would otherwise constitute these crimes, and the extent of availability of those defenses will be fact-specific. . . . Where the Commander-in-Chief authority is being relied upon, a Presidential written directive would serve to memorialize this authority." [UPDATE: And ABC News reports (based on notes of a DoD official) that in a meeting held March 8, 2003, a group of top Pentagon lawyers concluded that "we need a presidential letter approving the use of the controversial interrogation to cover those who may be called upon to use them."
This is, I think, the key to the puzzle. The Pentagon understood that federal statutory law -- the UCMJ -- stood in the way of what it wished to do, and rendered unlawful what it already had done in the case of al-Qahtani. It had in its back pocket, however, the legal immunity conferred by the Department of Justice's authoritative legal opinion that the President has the absolute authority, pursuant to his Commander-in-Chief power, to determine "what methods to use to best prevail against the enemy," notwithstanding any statutory restrictions that Congress may have imposed.
Is there such a presidential order approving the use of certain otherwise unlawful techniques? Well, at least one FBI e-mail suggests that there is. I'm a bit skeptical -- I have a hard time believing that Alberto Gonzales and the White House Counsel's Office would have created a paper trail that includes specific authorization of unlawful activity signed by the President (although stranger things have happened). (The ABC News report states that "[n]o such letter was issued." But it doesn't provide any basis for this conclusion.) But I do suspect that there is at least one document out there purporting to "immunize" interrogators from culpability for such activity:
Not surprisingly, there were those within the Pentagon (JAG lawyers, in particular) who were skeptical of the legal justifications for the approved techniques. But, as Senator Levin noted in a March hearing, the Church Report on interrogation at GTMO (a report that remains classified) notes that the DoD working group "was stopped from developing its own legal analysis and instead, was required to accept the legal analysis contained in a memorandum from the Justice Department's Office of Legal Counsel, a memorandum [with] which the working group strongly disagreed. According to [the Church] report, that memo, entitled 'Military Interrogation of Alien Unlawful Combatants,' was prepared by Deputy Assistant Attorney General John Yoo for Department of Defense General Counsel Haynes, and . . . had a date of March 14, 2003. This memo was presented, as [the Church] report indicates, to the working group as 'controlling authority' on all legal issues. . . . You [Admiral Church] also noted that conclusions of that memo are nearly identical to those of the August 1, 2002 Office of Legal Counsel memo which is known as the Torture Memo."
When, if ever, will we see the March 2003 OLC Opinion to the Pentagon, without which we cannot fully understand the legal basis for the interrogation techniques approved and implemented by the Department of Defense? Don't hold your breath. Posted
by Marty Lederman [link]
Hats off to Marty Lederman. Whereas Adam Zagorin and TIME give us a smattering of documents and an article consisting of pure pablum that misses even the most obvious questions, Marty cuts to the chase and shows how important these documents are to an understanding of what happened and is still happening at GTMO. For Diane Beaver, Jim Haynes and Donald Rumsfeld, I would recommend some quiet hours in a library with the writings of Abraham Lincoln. Starting with this: "Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God." This fundamental notion of accountability has gone strangely missing somewhere between the interrogation cells of GTMO and the Pentagon.
Marty makes a case for a possible violation of law (e.g., assault). But what is it about this detainee's treatment that, under the circumstances, is so clearly morally repugnant that you consign Rumsfeld et. al to catch up on their Lincoln? I am baffled by this perspective, in light of the struggle we face. (Just for grins, you might comment on the extra-constitutional steps Lincoln authorized during times of war, and the appalling treatment of prisoners during that conflict.) I would also recommend that you spend some quiet minutes catching up on your Lileks -- http://www.lileks.com/screedblog/
The lawlessness of the Bush administration is reminiscent of the Keystone Kops and is not at all indicative of resourcefulness. On the contrary, the ineptitude of interrogation techniques, the lack of any ability to penetrate the mentality of Jihadists, and the contempt for legal and religious bounds must fortify the distrust and determination of the prisoners. Who would ever give any reliable information when subjected to atrocities; human dignity demands resistance and misinformation, quite aside from any putative dedication to Jihad! The resort to licensed meanness and atrocity is a terror tactic reminiscent of Saddam Hussein. Its use by Americans is ounterproductive in the extreme, both to eliciting information and to denying pretexts for ongoing violent resistance throughout the moslem world. It is sad to say, but the contempt for established standards of civilized conduct embedded in International Law has created blowback faster than anyone imagined.
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After watching the C-Span videos of the hearings so far, I offer a few thoughts for consideration:-
In England where we have a split profession, members of the bar very rarely have to give evidence, but solicitors quite frequently have to and, very often, they make bad (unconvincing rather than untruthful) witnesses.
This seems to be because, while they are being cross examined, they try to think beyond the question to the potential consequences of alternative answers. That is hard to do on the hoof - and this makes them come across as shifty and evasive, even when the truth might be that they are simply trying to be accurate.
Having said that, the procedural style of these Committees with each member being allowed limited time, did not seem to be to be a format particularly designed to get at the truth – although I agree that the more generous time per member in the Senate committee seemed to produce better results.
After watching, I wondered just how some of these lawyers would fare before a select committee, commission of inquiry, or some similar body under sustained cross-examination by a skilled trial lawyer.
I query just how many trial lawyers will have found Col Beaver’s memory lapses convincing. This was not the case of a lawyer asked about one of thousands of routine conveyancing transactions many years previously where it would be entirely honest and legitimate to say, "I have no memory beyond what is in my file notes." This was (I sincerely hope) a wholly exceptional circumstance for Col Beaver and I would have expected the events to have been seared into her memory. I wonder just how much of her memory lapses were prompted by tactical suggestions prior to her testimony from her Counsel who intervened once when the going got rough.
Then I got to wondering about the extent to which the groves of Academe bear some responsibility for all this: after all, Professor Cohn’s prepared statement: http://judiciary.house.gov/media/pdfs/Cohn080506.pdf encapsulates in a few words the essentials of the legal position on torture and inhuman and degrading treatment – for all parts of government – CIA and Special Forces not excepted. It's hardly difficult law.
Further, many of the constitutional issues adverted to by Mr Levin (who did come across as a convincing witness) only arise in truth because of some of the crack-pot theories on presidential power which have become fashionable among the neoconservative originalists and which only hold water if one ignores the fact that the founding fathers, working from the historical prerogative powers of the Crown, gave the president a power of pardon, but did not provide for the claimed Stuart power to suspend laws, nor the like claimed power to dispense individuals or groups from the effect of laws (both obsolete even by the time of George III), but created, instead, an express duty on the President to execute the laws – all of them - including duly ratified treaties.
If the neoconservatives in Academia have consciences, perhaps the time has come for them for them to examine the same in the knowledge that what they teach budding lawyers has consequences in the real world. Some of the consequences are just beginning to come into the open – and there is more and much worse to come.
But this is not just a matter for individuals: universities are generally bodies corporate with a corporate responsibility to educate – which many would say includes instilling principles of moral and social responsibility – see: Anne Colby & Others : Educating Citizens: Preparing America’s Undergraduates for Lives of Moral and Civic Responsibility 2003 - San Francisco - Jossey-Bass.
It seems to an outsider like me that many academic corporations in the USA have sacrificed that responsibility on the twin altars of freedom of speech and mammon (in the form of acceptance of funding from the far right foundations on express or implied terms).
The reluctance of the academic community to take any steps in relation to Professor Yoo is informative. To adopt an Anglican approach, if he cannot be defrocked, then ought not his licence to preach to be revoked or made subject to conditions.
Then, I got to wondering whether the US “spoils” system, whereby many lawyers in government service are political appointees, really serves the country well. In the UK, the politicians get to appoint the secretaries of state, ministers and their deputies, but, apart from the Attorney General and the Solicitor-General as the law officers, they do not get to touch the Government Legal Service which is career civil service, politically neutral and generally ensures that ministers get the advice they ought to have whether they want to hear it or not. I do not think advice as incompetent as I have read in the various torture memoranda could have been produced by GLS lawyers in the UK.
Lastly, but not least, I wondered how the great American public is going to react when they find out the full extent to which there is an impending debacle in Afghanistan even more than in Iraq and how the incompetent conduct of US intervention by the Carter, Reagan and Bush administrations may have made matters worse rather than better.