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
For all of the very substantial virtues of the McCain Amendment, there remains a serious risk that the Administration will apply it in a very narrow fashion that could materially undercut Senator McCain's intent. There are potential pitfalls with respect to both of the Amendment's two substantive provisions -- and there remains the lurking spectre of a Commander-in-Chief override.
1. The Army Field Manual. The first provision of the McCain Amendment provides in pertinent part: "No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation."
From the 1960's until late 2002, Army Field Manual 34-52 prescribed the 17 interrogation approaches that were acceptable within the military--including for POWs who are entitled to the fullest protections of the Geneva Conventions. The McCain Amendment is intended to regularize the military's techniques again, by requiring that they be described in the Field Manual.
But the McCain Amendment would not freeze the Field Manual in place -- it could be amended, and this is precisely what is currently occurring. The Army has prepared an updated and amended Field Manual, which includes, for the first time ever, a classified Addendum setting out a secret set of interrogation methods.
According to the New York Times, the addendum was forwarded this week to Stephen A. Cambone, the Undersecretary for Intelligence Policy, for final approval:
The addendum provides dozens of interrogation examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations. [D]efense officials said the new guidelines could give the impression that the Army was pushing the limits on legal interrogation at the very moment when McCain is involved in intense three-way negotiations with the House and the Bush administration to prohibit the cruel treatment of prisoners. In a high-level meeting at the Pentagon on Tuesday, Army and other Pentagon officials raised serious concerns that Mr. McCain would be furious at what could appear to be a back-door effort to circumvent his intentions. "This is a stick in McCain's eye," one defense official said. "It goes right up to the edge. He's not going to be comfortable with this."
The account isn't entirely clear, but I'm assuming that the published manual would be intended for POW interrogations, and thus would track the Geneva Convention's prohibition on all coercive techniques -- and that the addendum, by contrast, will cover interrogation of non-POWs, against whom coercive techniques of some nature may be used. If so, the addendum might (as the Times story suggests) permit techniques that had never been permissible in the military prior to 2002. Presumably the addendum would not authorize assaults, threats, cruelty and maltreatment, all of which are criminal offenses under the UCMJ. But who knows? This Administration has run roughshod over that criminal statute in the past. More importantly, presumably the addendum does not comply with Common Article 3 of the Geneva Conventions, which had guided U.S. policy and practice for over 50 years until the President abandoned it on February 7, 2002. (See my discussions here and here.)
Moreover, there is yet a more ominous possibility. Perhaps, as I suggest above, the function of the classified addendum is to cover certain classes of detainees, e.g., "unlawful combatants," who do not qualify for full Geneva protections. But perhaps, instead, the addendum gives more specific details concerning what the military has concluded is authorized even with respect to POWs -- e.g., spelling out what is permitted under the approaches of the Manual itself.
Now, there's nothing inherently wrong, and much to be gained, about spelling out in greater detail the 17 Field Manual techniques, and perhaps even of doing so in a classified setting. But if that's what this is, then I fear that the Addendum construes the FM techniques much as the Pentagon's outrageous Schmidt Report did -- e.g., to authorize, as forms of "Ego Down" and "Futility" that are permissible against all detainees, methods such as:
-- forcing a detainee to wear a bra and have a thong placed on his head during interrogation;
-- tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks;
-- forcing him to dance with a male interrogator;
-- stripping him maked;
-- placing Korans on a television "as a control measure";
-- and pouring water on the detainee during interrogation—17 times.
In the Army Field Manual itself (see pages 3-18 to 3-19), "Fear Up" and "Futility" describe forms of questioning and psychological, verbal gamesmanship, designed to induce a detainee to reveal information by, for instance, feeding him disinformation that convinces him that all hope is lost. At GTMO, however—and in the Schmidt Report—these categories are fundamentally transformed, to the point where they are almost unrecognizable.
If that's what the Addendum does -- i.e., specify that the Field Manual permits the extreme techniques employed at GTMO -- then I can see why it would infuriate Senator McCain. If, as the Schmidt Report concludes, the techniques used at GTMO are authorized by the Army Field Manual itself, it then would follow that the military may use those techniques on any detainees, including POWs, anywhere in the world, in any conflict. (Moreover, it would appear to authorize techniques that violate the UCMJ.) As such, it would threaten a transformation of what is deemed acceptable, lawful treatment of U.S. military detainees across the board—an erosion of the Geneva-based standards that have been the basis for the military's training and practices for the last few decades.
2. The Ban on Cruel, Inhuman and Degrading Treatment As I explained in the previous post, the second, and more important, provision of the McCain Amendment would categorically prohibit U.S. personnel anywhere in the world from engaging in "cruel, inhuman and degrading" treatment, which in effect means a prohibition on conduct that would "shock the conscience" in violation of the Due Process Clause if it occurred here in the U.S.
The vulnerability of this provision is that no one has any firm idea how the "shocks the conscience" standard applies in the context of interrogations of suspected international terrorism operatives. At least three, and presumably at least five, of the current Supreme Court Justices are of the view that "[a] constitutional right is traduced the moment torture or its close equivalents are brought to bear." Chavez v. Martinez, 538 U.S. at 789 (Kennedy, J., concurring in part and dissenting in part). But what about coercive techniques short of "close equivalents" to torture? Those same Justices have indicated that "severe compulsion" would shock the conscience in the context of a criminal investigation. Id. at 794. But how this would translate to the context of interrogating Al Qaeda suspects for the purpose of trying to secure valuable terrorism-related intelligence is anyone's guess. The Court has recently suggested that the "shocks the conscience" test turns, at least in part, on the reasons for the government's conduct. City of Sacramento v. Lewis, 523 U.S. at 849. This doesn't mean, of course, that a worthy objective automatically saves an extreme technique from invalidation under the "conscience-shocking" test. But it does mean that one has to weigh the government's purposes in the mix. And, for obvious reasons, there is virtually no caselaw applying the "shocks the conscience" test in circumstances such as those at issue here.
It is safe to say, I think, that some of the more extreme CIA techniques -- waterboarding and cold cell, say -- would invariably, or almost always, shock the conscience. Therefore, the McCain Amendment will take certain previously approved techniques off the table. (If this weren't the case, then the Vice President's tooth-and-nail opposition would have been fairly inexplicable.) But beyond that, its effect as to particular interrogation techniques is somewhat uncertain. [UPDATE: I'm not comforted by the Vice President's recent statement trying to make the best of McCain, in which he suggests that the "shocks the conscience" standard is awfully manipulable: "Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose, that's in the eye of the beholder. But I believe, and we think it's important to remember, that we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11, that it's important for us to be able to have effective interrogation of these people when we capture them."]
3. Executive Override? Has the Administration abandoned its view that the Commander-in-Chief may ignore statutory restrictions that impinge on the President's judgment of “what methods to use to best prevail against the enemy”? (See more here.) We'll need to keep an eye on the President's signing statement(s).
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In sum, it's possible the Administration will construe and apply the McCain Amendment in a manner that will substantially weaken its effect. Moreover, the McCain Amendment does not contain any enforcement mechanisms: It doesn't establish criminal or civil penalties for violations. The good news, however, is that next month Senator McCain becomes the Chair of the Senate Armed Services Committee, which will give him serious leverage for overseeing the administration of his own Amendment (including the changes to the Army Field Manual).
There remains the question whether the benefits of the McCain Amendment are outweighed by the other provisions that the White House has apparently secured in exchange. I'll discuss these briefly in my next post. Posted
by Marty Lederman [link]