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
Condi Rice's "No Torture" Pledge: Don't Believe the Hype!
Sorry, Jack, but it is, in fact, too good to be true.
Many news outlets are reporting, as big, breaking news, the fact that the Secretary of State today said in Kiev: "As a matter of U.S. policy, the United States' obligations under the CAT (Convention against Torture), which prohibits cruel, inhumane and degrading treatment -- those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States."
The Washington Post, for instance, made this its lead story today, with the headline "Rice Seeks To Clarify Policy on Prisoners," and the subhead "Cruel, Inhuman Tactics By U.S. Personnel Barred Overseas and at Home." The Post story explains that "Rice's statement appeared to leave little room for ambiguity, which could potentially undermine her credibility if it is later discovered that CIA personnel are still using prohibited interrogation techniques."
This is dead wrong. Her statement (a) is nothing new; and (b) leaves a ton of room for ambiguity. [UPDATE: The Post editorial page, on the other hand, does a remarkably quick and thorough job making mincemeat of its own lead story, with an editorial that begins "Secretary of State Condoleezza Rice did not break any new ground yesterday," and that proceeds to make many of the same points that I set forth in this post.]
It's Nothing New
The Post recounts that Attorney General Gonzales said the same thing last month in a written answer to a Senate question. Yes. But more to the point, Gonzales said the same thing -- indeed, appeared to be even less equivocal about U.S. "policy" -- back in January, when he submitted written answers to Senate questions in his confirmation hearing. As I reported at length back then, Gonzales wrote that U.S. policy was to refrain from cruel, inhuman and degrading treatment ("CIDT") everywhere -- even though that wasn't, in the Administration's view, what the law required. He elaborated that the Administration "want[s] to be in compliance with the relevant substantive constitutional standard incorporated into Article 16"; that he "had been advised" (interesting use of tense) that "approved interrogation techniques were analyzed under that standard and satisfied it"; and that "since that time, we have determined to undertake a comprehensive legal review of all interrogation practices. . . . The analysis of practices under the standards of Article 16 is still under way, but no one has told me that we are not meeting the substantive requirements of Article 16."
In September, the then-nominee to be Deputy Attorney General, Tim Flanigan, said the same thing, in his responses to the Senate. See here.
And yet, notwithstanding these assurances about U.S. "policy," the CIA practices of waterboarding, and hypothermia, and forcing prisoners to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours, presumably continued unabated. See here. Moreover, the Vice President continued to fight tooth and nail to prevent the McCain Amendment, even going so far as to threaten a Presidential veto of the Defense Appropriations bill! And then the Administration began to insist on a CIA exemption. This is awfully odd behavior if, in fact, our uniform policy and practice was already to ensure undeviating compliance with the prohibitions in Article 16.
PLenty of Room for Ambiguity (or Duplicity):
Rice's statement leaves "little room for ambiguity"? Well, just look at the mixed messages today alone. The Post reports that, when asked whether her statement was intended to close the loophole the Administration has relied upon to avoid the application of the CIDT prohibition to aliens detained overseas, "[s]he first ducked the question, and then later in the briefing said, 'Our people, wherever they are, are operating under U.S. law and U.S. obligations.'" Not too reassuring, eh? And then there's this: "For two days, her aides declined to clarify whether her comment in the briefing signaled a change from the previous administration position. . . . [E]ven after Rice made her remarks here, her aides were sensitive to suggestions she was breaking new ground. White House spokesman Scott McClellan told reporters in Washington that Rice was repeating existing policy."
In other words, "clarification" is decidedly not what they're aiming for. More like obfuscation, equivocation, double-speak.
So what might Rice's statement mean, and how can it be consistent with the Administration's practice of authorizing the CIA to use "enhanced interrogation techniques"? A few possibilities:
1. First, note carefully what Rice said: that "the United States' obligations under the CAT . . . extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States." Yes, that's true. But it's uncontroverted. Everyone agrees that CAT article 16 applies outside the U.S. For instance, it certainly protects conduct taken against U.S. citizens in overseas territory "subject to [U.S.] jurisdiction." But the pertinent question is whether the U.S. is committed to avoidance of CIDT as applied to aliens detained everywhere overseas -- and Rice's statement says nothing about that question.
2. One of the Administration's arguments, which I've discussed at length on this blog, is that (i) Article 16 merely incorporates the protections of the Due Process Clause; (ii) the Due Process Clause does not protect aliens overseas; (iii) ergo, neither does Article 16 protect aliens overseas. If they are adhering to this argument, Rice can comfortably say that our obligations under Article 16 apply everywhere, so long as she neglects to note the fact that, in the Administration's view, those obligations do not extend to aliens outside the U.S.
3. Another of the Administration's arguments is that they are applying Article 16 everywhere -- but that Article 16 by its terms only imposes obligations "in any territory under [U.S.] jurisdiction." Perhaps GTMO is within U.S. jurisdiction, on the Administration's view. (Who knows?) But DOJ's view apparently is that the phrase does not encompass most U.S.-operated facilities in other nations, and thus would not apply to the CIA's black sites in foreign jurisdictions, such as Poland. In other words, "We will now abide by Article 16 everywhere" means "We will now abide by Article 16 everywhere in the world that is under U.S. jurisdiction (narrowly defined)."
* * * *
Is this confusing? You bet it is. But the confusion is not inadvertent -- it's intentional. The whole object is to hide the ball and constantly shift and recalibrate the (literal) terms of the debate. As the New York Times reported today, "'[i]t's clear that the text of the [Rice] speech was drafted by lawyers with the intention of misleading an audience,'" Andrew Tyrie, a Conservative member of Parliament, said in an interview. . . . Parsing through the speech, Mr. Tyrie pointed out example after example where, he said, Ms. Rice was using surgically precise language to obfuscate and distract."
As long as the public discussion is focused on abstract labels and vague, general standards the meaning of which is known only to a small cabal within the Administration, it will be impossible to have a meaningful debate about what's permitted and what is not. In order to have any legitimate public debate on these questions, we will first need to see the Administration's legal analysis that explains how the Administration understands the application of the standards as a practical matter. What -- as a practical matter -- does "torture" mean? "Humane" treatment? "Cruel, inhuman and degrading treatment"? "Prolonged mental harm"? "A likelihood of being tortured"? "Policy"? "Subject to its jurisdiction"? "Shocks the conscience"? Etc. There are, of course, slews of court decisions, international adjudications, articles, blogs, etc., that have addressed these questions. But when waterboarding and cold cell are part of our repetoire of interrogation techniques, and yet it's our "policy" not to torture, and to treat all detainees humanely, and to refrain from CIDT, then obviously that's a sign that the law as it's being applied by our government is a far cry from any ordinary, intuitive, or lay understanding of what the law means. (Tom Toles's cartoon today nails it.) The idea of a secret body of law in a democratic society is very disconcerting -- but that's what it's come to here.
The McCain Amendment would eliminate almost all of the Administration's hair-splitting by categorically applying the ban on CIDT to all U.S. personnel, with respect to all detainees, wherever they are found. (Unfortunately, it won't eliminate all the ambiguities, because we do not know how the CIDT standard -- the "shocks the conscience" test of the Due Process Clause -- would apply to the interrogation of high-level terrorism suspects who may have valuable intelligence. But it would eliminate most of the absurd geographic distinctions that currently plague us. After the McCain Amendment is enacted, the rules for interrogation in South Carolina will be the same as the rules at GTMO, which will be the same (for domestic law purposes) as the rules at a "black site." We may not know precisely what those rules are . . . but it's a start.)
* * * *
A word about the Secretary's words about renditions:
Secretary Rice was quoted as saying yesterday: "The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured."
3. Even with respect to a nation that has an egregious record of torture, we conclude that the 50% threshhold is not met if we receive an "assurance" from the nation that it will not "torture."
4. What's more, there's strong indication that the U.S. doesn't think the CAT even applies with respect to renditions from one foreign land to another -- that in the Administration's view, the rendition restriction is limited to renditions from the U.S. Posted
by Marty Lederman [link]
Depressingly thorough and clear-eyed. I had hoped against hope that this was actually a real bone thrown to appease the European allies, rather than yet another smoke screen.
But I suppose I should have known better than to trust this administration -- the one that used the Geneva Convention to justify filling an off-shore prison with "illegal combatants" -- to actually let itself be constrained by international law.
Rice: Vigilante, Mindreader. If one reads all the transcripts of Rice's recent comments in Europe, as posted by the State Department, one is struck by the fact that Rice views law as ineffective, and that she (and her associates) have the ability to predict terrorist acts. Upon these premises, she feels entirely justified in using rendition, unlawful detention and unlawful interrogation techniques.
what motivates these word games? the general public certainly won't notice or care about such subtleties (ie, they could simply lie like they do about everything else), and sophisticates like mr L will see through them. is it cover in case of future legal vulnerability? if so, is that a real threat and could the cover work?
"to hide the ball" ... as referenced by a writer at Slate, this is akin to "Calvinball," the game by the seven year old boy in Calvin and Hobbes in which the rules are always changing, mainly by the boy himself.
Please consider getting an agent, writing a book for a broader audience about the Bush Administration's torture "bamboozlepalooza"(TPM). I'd love see it on the best seller lists, discussed on the news, shaping public opinion.
The Bush critics have no institutional apparatus to cut through all this obfuscation and turn public opinion. It's so depressing.