President Tells Congress to Take a Hike on Detention and Interrogation

Marty Lederman

As I noted earlier this week, Senators Graham, McCain and Warner have indicated that they are prepared to craft legislation dealing with three questions that have been at the heart of debates about detention, interrogation and torture: (i) What is the definition of an "enemy combatant" who may be detained by the military outside the ordinary civil justice system?; (ii) What procedural rules should be employed by military tribunals?; and (iii) Which interrogation techniques should be authorized, and which prohibited?

In addition, Senator Levin and others are proposing the creation of an independent commission to address these and related questions (including questions about what the Administration's practices have been thus far).

The White House now is trying to cut these initiatives off at the pass. In a Statement of Administration Policy issued yesterday, the Administration articulated its support for S.1042, the National Defense Authorization Act for Fiscal Year 2006. But the SAP goes on to issue a rare and strongly worded veto threat, as well:

The Administration understands that amendments may be offered to establish a national commission on the detainee operations or to regulate the detention, treatment or trial of terrorists captured in the war on terror. The Administration strongly opposes such amendments, which would interfere with the protection of Americans from terrorism by diverting resources from the war to answer unnecessary or duplicative inquiry or by restricting the President's ability to conduct the war effectively under existing law. The Constitution and the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, September 18, 201) provide the authority the President needs to conduct the war effectively and protect the American people. If legislation is presented that would restrict the President's authority to protect Americans effectively from terrorist attack and bring terrorists to justice, the President's senior advisers would recommend that he veto the bill. (Emphasis in original.)

Fancy that: Even before any amendments are offered—by leading conservative Senators of the President's own party—and therefore before the White House has even seen what the statutory language might be, the President categorically concludes that the legislation necessarily "would interfere with the protection of Americans from terrorism . . . by restricting the President's ability to conduct the war effectively under existing law."

Heaven forbid Congress should have the nerve to actually exercise its authorities under Article I, section 8, clauses 10, 11 and 14 of the Constitution—which empower Congress to define and punish Offences against the Law of Nations, to make Rules concerning Captures on Land and Water, and to make Rules for the Government and Regulation of the land and naval Forces. For to do so will invariably hamper the Executive's abiltity to keep the Nation safe from terror.

Isn't this just a tad too much arrogation of power, even for this President?

What if Congress, for example, decided to heed the advice of the 9/11 Commission (see page 380), and passed a bill codifying the modest standards of Common Article 3 of the Geneva Conventions, which provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment"? (Such a statute would "merely" require that U.S. policy be brought back into line with what it had been from 1949 (if not earlier) until February 2002—an exceedingly modest restoration of civilized conduct, albeit far less than what ought to be done.)

The President would actually veto the all-important Defense Authorization bill simply because Congress would forbid him from authorizing "outrages upon personal dignity, in particular humiliating and degrading treatment"?! And he would have the gall to do so on the ground that forbidding such degrading treatment—such as tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks, using female interrogators to sexually humiliate him, and pouring water on his head 17 times during interrogation—would "restrict[] the President's ability to conduct the war effectively"?

Well, that certainly would be an interesting justification for this President's first veto.

Fortunately, it appears that Senators Graham and McCain are not so easily cowed, despite the apparent pleas of the Vice President himself: "McCain, who endured torture as a prisoner of war in Vietnam, said after meeting at the Capitol with Vice President Dick Cheney that he still intended to offer amendments next week 'on the standard of treatment of prisoners.'"

[UPDATE: Great story in Saturday's Washington Post about the desperate efforts of the Vice President to deep-six the Graham/McCain/Warner initiative. Excerpts:

The Bush administration in recent days has been lobbying to block legislation supported by Republican senators that would bar the U.S. military from engaging in "cruel, inhuman or degrading treatment" of detainees, from hiding prisoners from the Red Cross, and from using interrogation methods not authorized by a new Army field manual. Vice President Cheney met Thursday evening with three senior Republican members of the Senate Armed Services Committee to press the administration's case that legislation on these matters would usurp the president's authority and -- in the words of a White House official -- interfere with his ability "to protect Americans effectively from terrorist attack."

It was the second time that Cheney has met with Senate members to tamp down what the White House views as an incipient Republican rebellion. . . . This week's session was attended by Armed Services Chairman John W. Warner (R-Va.) and committee members John McCain (R-Ariz.) and Lindsey O. Graham (R-S.C.). . . .

No effort has been made by McCain to cultivate Democratic support [for the draft legislation], although his aides predict he could get it easily. . . . A spokeswoman for McCain, Andrea Jones, said yesterday that McCain plans to introduce the legislation next week. McCain, who was a prisoner of war in Vietnam, has criticized the way detainees have been treated by U.S. forces and is said by aides to want to cut off further abuse by requiring that the military adhere to its own interrogation rules in all cases.

One McCain amendment would set uniform standards for interrogating anyone detained by the Defense Department and would limit interrogation techniques to those listed in the Army field manual on interrogation, now being revised. Any changes to procedures would require the defense secretary to appear before Congress.

It would further require that all foreign nationals in the custody or effective control of the U.S. military must be registered with the International Committee of the Red Cross -- a provision specifically meant to block the holding of "ghost detainees" in Iraq, in Afghanistan or elsewhere. The provision would not apply to detainees in CIA custody at nonmilitary facilities. . . .

Another McCain amendment prohibits the "cruel, inhuman or degrading treatment or punishment" of anyone in the custody of the U.S. government. This provision, modeled after wording in the U.N. Convention Against Torture -- which the United States has already ratified -- is meant to overturn an administration position that the convention does not apply to foreigners outside the United States.

Graham, who has been outspoken on the need for Congress to get involved in the issue of detainee treatment, said in an interview that he intends to pursue additional amendments that would define the term "enemy combatant" for purposes of detention and regulate the military trials of detainees held at Guantanamo Bay.

Graham said he believes that his amendment would strengthen the president's ability to pursue the war on terror because it would give congressional support to the process of prosecuting detainees after they are transferred to Cuba, an issue that has been hotly contested in federal courts. "Every administration is reluctant to not have as much authority as possible," Graham said, adding that he has gotten mixed signals from the White House. "But we need congressional buy-in to Guantanamo."

Posted 10:44 AM by Marty Lederman [link]