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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Vice President Cheney and his dwindling number of GOP floor lieutenants continue to demonstrate amazing industry in their efforts to block the McCain Amendment. Today’s effort focuses on a new Department of Defense Directive No. 3115.09, dated November 3, 2005 and issued by Acting Deputy Secretary of Defense Gordon England. House Armed Services Committee Chair Duncan Hunter and others are busily pointing to this Directive and arguing that it resolves the worries that motivated McCain, Warner and Graham. With this Directive, Hunter argues, the concerns about detainee mistreatment are addressed, and the need for the McCain Amendment is eliminated.
No one who has tracked this issue is misled even for a second as to the major goal of this effort: it is to preserve the CIA’s ability to use highly coercive techniques – cruel, inhuman and degrading treatment, and yes, torture – in their intelligence gathering process. But a careful examination of the new directive shows that it is more an effort to entrench current abusive policies than a recognition of criticisms and resolve fairly to answer them. Here are some of the major shortcomings.
Commitment to the Rule of Law and Geneva Conventions Current directives state that DOD personnel “shall comply with” the Geneva Conventions, and indeed, Field Manual 34-52 has been recognized around the world as a model of scrupulous adherence and implementation of the Conventions. By contrast, this directive starts by disavowing the Conventions. The old directive said that DOD personnel “shall apply” the Geneva Conventions and other applicable law. What was once mandatory, now becomes discretionary: the governing standards “may include the law of war, relevant international law, U.S. law and applicable directives” “unless otherwise authorized” by the Secretary of Defense. In other words, the directive actually contemplates that Secretary Rumsfeld may authorize personnel to disregard binding law. Indeed, he already has, and has publicly acknowledged this fact in the ghost detainees affair. This language comes perilously close to suggesting a repudiation of the rule of law. And it is striking for its refusal to recognize that cruel, inhuman and degrading treatment will not be countenanced. As Senator Lindsey Graham has stated, this point lies at the very heart of the McCain Amendment – and the new DOD directive appears to defy it.
Reading the tealeaves more closely, this passage also gives us some clue about who was and was not involved in drafting this directive. It uses the term "law of war." No uniformed lawyer from the post-Vietnam War era would use such outmoded language. He or she would refer to the "law of armed conflict" (LOAC for short). This phrasing suggests an author who is intimately familiar with the Pentagon as a political appointee, but has never worn a service uniform or fought in a war, and knows precious little about the law of armed conflict. And likely someone who collected his law degree sometime before 1980. Let's see... might that be David S. Addington?
It Depends on What ‘Humane’ Means Until 2002, Department of Defense policy consistently accorded detainees treatment which matched or exceded the “humane” standard of Common Article 3 of the Geneva Conventions. After 2002, a new understanding of “humane” was introduced under which it was – in Marty Lederman’s formulation – “defined down.” This became clear for the first time in submissions made by Alberto Gonzales to the Senate Judiciary Committee when his appointment as attorney general was reviewed. It was revisited during the ill-fated nomination of Tim Flanigan. The most authoritative discussion of this process is still found in three of Marty’s posts, here, here and here. In essence, the new use of “humane” allows a detainee to be subjected to physical brutality (certainly to brutal “stress techniques”) – as long as you toss him a sandwich and give him a clean place to sleep, the treatment still counts as “humane.” Lt. Gen. Mark Randall Schmidt’s jarring report on the treatment of Guantánamo detainees made this point by repeatedly outlining highly abusive and degrading treatment, but finding that it was “humane” in DOD parlance, and within the scope of FM 34-52 as re-interpreted under Secretary Rumsfeld.
The directive offers no comfort on detainee treatment, because it establishes a predictable standard: treat them “humanely.” (3.1). Until a new standard for “humane” is introduced, that means it sanctions the sort of abusive treatment which seems permanently displayed in the headlines of the nation’s newspapers and is badly tarnishing our reputation around the world. Nor is there any reason to hope that “humane” will be redefined. The New York Times reports that Matthew Waxman and others moved to restore the traditional DOD understanding of “humane” – the one based on Common Article 3 – and that they were beaten down by Vice President Cheney and David S. Addington, Cheney’s new chief of staff, and Washington’s favorite Keyser Söze.
The Potemkin Directive This directive is a sham in several respects. First, as Defense Department spokesman Bryan Whitman openly acknowledged yesterday, it can be changed or modified by the Secretary of Defense whenever he likes. Moreover, the SecDef is free to exempt specific operations or personnel from its reach. Is that a wild idea? Hardly. We already know, for instance, that the SecDef suspended FM 34-52, and that he authorized rules of engagement for USSOCOM units (special forces) which are completely irreconcilable with FM 34-52. Before the Abu Ghraib scandal ever errupted into the nation's newspapers, Secretary Rumsfeld had turned the venerable field manual into an enormous Swiss cheese. Second, the directive itself hinges on two other documents - the as yet unreleased new manual and a second directive, currently a bone of contention between military traditionalists and Vice President Cheney and his chief of staff.
Canine Ethics Curiously, one single abusive practice is ruled out: the use of military dogs to terrify prisoners. (126.96.36.199). But this practice has always been outlawed by DOD rules. The problem is simply that those rules were not applied. Far more troubling practices remain unaddressed: the sweeping use of potentially lethal stress techniques, sexual humiliation practices (which Schmidt taught us have been carefully crafted and introduced since 2002), and an array of techniques designed to show disrespect for the detainee’s religion or to use his religious values to “break” him. Clearly these things could be addressed in the new field manual, but it is appropriate for the directive to reaffirm the existing – indeed two centuries old – military doctrine which precludes religious hazing and degrading treatment.
The Reporting Process The directive deals with the need to investigate and act on allegations of detainee abuse. It deals with this through a normal command authority approach. What the directive does is unobjectionable. But it is noteworthy that this approach provides no basis for disciplining civilians, whether contract interrogators, CIA operatives, or senior assistants to Secretary Rumsfeld. Investigations to date would suggest that each of these three categories have been heavily involved in largely still uninvestigated misconduct relating to the detainees.
Access to OGA and Contractors The directive addresses the thorny issue of access to detainees for CIA (“Other Government Agency”) interrogators and civilian contractors. The expansive role granted civilian contractors is not consistent with military tradition and raises profound questions about the use of de facto mercenaries in the intelligence gathering process. The most fundamental question is accountability. The directive suggests that contractors may be bound to DOD standards if contracts provide that, raising the worrisome prospect that contracts would no so provide. There is no legitimate reason for this loophole. The bottom line is that, legally, the DOD bears responsibility for what other interrogators do to its detainees. The DOD should therefore be serious about its rules and not try to play cute with them. The directive suggests an alarming lack of seriousness on this score. (188.8.131.52).
Professional Ethics A surprisingly large portion of the directive deals with the professional ethics of medical personnel involved in treating or dealing with detainees. But rather than insisting that the high ethical standards of the professional be observed, the focus of the directive is on evading ethical responsibilities. This it does by segregating “behavioral science consultants” from other medical personnel and falsely denying the professional duties they owe to the detainees they work with. Medical professionals should be left free to perform their duties consistent with the ethical and professional standards of their calling. Those standards are clearly articulated by professional oversight boards and associations. To the extent the directive aims to burrow under those standards, it needs to be exposed and challenged.
Detention Operations Issues The directive says that those responsible for detention operations, like military police personnel, “shall not directly participate in the conduct of interrogations.” (3.4.4) Abu Ghraib offered a stark demonstration of the damage that could be done by eliminating the bright-line distinction between detention operations and interrogation. Saying that military police “shall not directly participate” does nothing to undo this damage. The Abu Ghraib MP’s never “directly participated” in interrogations – they were used to prepare detainees for interrogation. This process exposed young MPs who lacked training in the rules governing interrogations to serious liability. It needs to be reversed, but the directive waffles on a commitment to do that.
Scope of Application The directive has many curious turns of phrase, some noted here. But it also has a very suspicious structural flaw. It is limited in its scope to detainees under DOD control. (3.4) It is clear that military interrogators have ready access to detainees under the control of other agencies and potentially to those under the control of cooperating foreign powers. The directive should govern the conduct of US personnel and attached civilians engaged in intelligence gathering activities, regardless of who technically exercises custody over the detainee. We have enough experience with Rumsfeld's Pentagon to know that "trust me" is no basis to be reassured on points like this.
The new DOD directive promises no reform or improvement. From the perspective of addressing the outcry over the mistreatment of detainees, it is materially worse than the DOD policies it replaces. The situation would be far better were this directive to be rescinded and the DOD to return to the scrupulous adherence to the standards of Field Manual 34-52 that served the military and the nation well for more than a generation. Posted
by Scott Horton [link]
No torture. Sounds good. While torture should not be allowed, what about coercive force in interrogation, what about psycological interrogations? Are they allowed. If so, what specifically?
I agree the McCain Amendment should apply to the DoD. Cheney and Rumsfeld blew having any trust placed in them after Gitmo and Abu Ghraib. But we need a more agressive standard for the CIA that is not torture. These standards can be defined. Put sunset provisions on it, allow Congress to monitor what is going on, but putting down blanket standards restricting the CIA has often proven to be counter-productive. I don't trust the CIA, Rumsfeld and Cheney, but I sure as hell fear what al Qaeda is up to. You should too.
McCain argued on Fox News Sunday on November 7, 2005 that the Israelis have good interrogation standards. Even though the Israeli Supreme Court banned torture in 1999--guess what, the Israelis use coercive force today in interrogations. The difference is the Israelis have trained professionals doing it: three years of training, fluent in Arabic, they don't engage in sexual or religious humiliation, and they sure as hell don't delegate interrogations to any Lyndie England types. It is serious business that needs to be professionally done.
Pass the McCain Amendment for the DoD and come up with rational sane limits on the CIA.
Unclear how the CIA has not warrant less trust than the military here -- because we were stonewalled more respecting them so we know less about them?
That's weird. Furthermore, if anything, shouldn't we trust military interrogators more since military training includes certain ethics the CIA might not have? This includes the use of mercenary questioners (as noted in the text) and/or "renditions" to other nations known to torture.
Again, the record there doesn't warrant our trust either. Sure, we should fear our enemies ... we should fear crossing the line as well. In fact, as we have seen, crossing the line often is counterproductive.
Thanks to Scott for his excellent analysis. One thing that I would add is that neither a DOD Directive nor a presidential order can exempt the CIA (or for that matter the Secretary of Defense or the President) from liability under international law for war crimes, which include grave violations of the Geneva Conventions and other treaties for such things as forced disappearances, arbitrary detentions, and unlawful deportations, not to mention torture in any guise.
Apart from this, I would like to note my personal bugbear, which is perhaps important, perhaps not, that if the Administration wants to call all al Qaida terrorists enemy combatants subject to "the laws of war" and not to criminal justice (per Bush's Military Order of 11/13/01 or his subsequent orderless enemy combatant designations), what justifies these persons being exempted from the DoD Directive?
In other words, are they or are they not combatants? Get your story straight. If they are combatants (and shouldn't there be a determination of this by a competent tribunal first?), what possible reason can you give for detaining them by a civilian agency and not by the DoD?
But in any event, none of these combatants can be considered exempt from protection under international law any more than we can justify or excuse violations of the LOAC on our part because our enemies didn't follow the rules.