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
The biggest downside of the McCain Amendment is that the Senator's victory on the substance of that amendment appears to have come at great cost on other substantive matters. In particular, the White House reportedly has been able to secure at least three statutory provisions of its own -- provisions that are being tied to McCain, as a singular "packaged" deal. The specific wording of the three provisions is not yet public, as far as I know. Therefore it is difficult to assess their full impact. But here's an initial summary, roughly in order of least to most troubling:
1. CIA "Immunity"
According to the Washington Post, Senator McCain agreed to add two paragraphs "that would give civilian interrogators legal protections that are already afforded to military interrogators," and that "specifically would allow those civilians to defend their use of interrogation tactics by arguing in court that a 'person of ordinary sense and understanding would not know the practices were unlawful.'"
I'm not sure exactly how this would work. The idea, as it was described during negotiations, was to make sure that CIA interrogators would not be civilly liable, or criminally culpable, if they reasonably relied on the Attorney General's certification that a particular technique is lawful. (The Robb-Silberman Report revealed that the Attorney General personally approves all intelligence agency interrogation techniques that go beyond openly published interrogation techniques.)
It's not clear to me how much this would change the law, at least on the criminal side. As a general matter, due process already protects persons against criminal culpability for conduct undertaken in reasonable reliance upon the legal opinions of government officials. Certain cases might raise hard questions about whether it is reasonable to rely on an official AG opinion of law -- but it seems to me that there should be a strong presumption that such reliance is reasonable: We should encourage Executive branch officials and employees to seek the legal advice of the AG (and OLC), and to rely on such advice. If the advice is wrong, disingenuous, or offered for improper purposes (e.g., to provide legal cover for conduct of dubious legality), the DOJ officials should be called to account -- not the CIA agents who acted in reliance thereon. (Again, in rare cases the AG's advice might be so implausible that reliance upon it is unreasonable. See, e.g., United States v. Dietrich, 126 F. 671, 675-676 (C.C.D. Neb. 1904) (Van Devanter, sitting as circuit judge). But one hopes that will be the rare case.)
2. Admission of Evidence Obtained by Torture?
As Scott Horton relates below, the evolving Graham-Levin-Kyl-Warner amendment apparently now includes a provision stating that a military administrative tribunal or board, in making a determination of status or disposition of a detainee, "shall to the extent practicable assess -- (A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and (B) the probative value (if any) of such statement."
It's not immediately apparent to me whether and to what extent -- and for what purposes, or subject to what review -- this provision would permit the admissibility of statements unlawfully obtained by torture. To the extent it would do so, however, it would of course create an incentive to use unlawful interrogation techniques.
3. Limitations on Detainees' Access to Judicial Review
This is the big problem -- the principal, review-stripping provisions of Graham-Levin-Kyl-Warner. I blogged previously about the version as passed by the Senate, which was, to say the least, confusing and ambiguous -- and ominous in its implications. Apparently, since that time, the White House and the conferees have been working on making further revisions that will go further still to cut off judicial review over important questions relating to detainees' status, detention, and treatment. It's not yet clear how this will all pan out, or how it will be construed. But to the extent these provisions overule significiant facets of the Supreme Court's Rasul decision, that would be a major victory for the White House, which has been desperate to avoid even the slightest judicial oversight of its detention and interrogation practices. It's not at all clear to me that enacting the McCain Amendment -- valuable as that is -- is worth it, if this is the cost. (It's possible, of course, that the Graham provisions would be just as likely to be enacted even if the McCain Amendment had failed, in which case inclusion of the McCain Amendment obviously is a positive development.) Posted
by Marty Lederman [link]
The Congressional Research Service put out a report that in part discussed the fact that a habeas stripping measure might still leave open other avenues of relief, including the All Writs Act and Bivens judgments, but noted that law ultimately was unclear.