The McCain Amendment -- What Would the Law Be, Anyway?

Marty Lederman

So, if the McCain Amendment is enacted, what would the law of interrogation be, anyway? A quick summary:

1. There would be few, if any, geographical distinctions -- what's permissible at a secret Polish site should be the same as what's permissible in South Carolina. Senator McCain is to thank for this welcome development.

2. Torture is categorically prohibited -- as it has been throughout the past four years. "Torture" is defined, for purposes of domestic law (and, arguably, our treaty obligations) by the Senate's understandings, which require a specific intent to inflict severe physical or mental pain or suffering. Severe mental pain or suffering consists of prolonged mental harm. As the Levin OLC Memo explained, there is "little guidance to draw upon in interpreting this phrase"; all that can reasonably be said for certain is that the mental damage "must extend for some period of time." The Levin Memo also concluded -- incorrectly -- that "severe physical suffering" requires suffering for an extended duration, or persistent suffering. This may explain why DOJ apparently concluded that waterboarding was not necessarily torture -- but the legal premise is wrong: The statute does not require that severe physical suffering be extended, or persistent. Waterboarding is, in fact, specifically intended to result in severe physical suffering, and thus it is torture (and a war crime), even under the narrower U.S. definition. (The same would appear to be true for "Cold Cell" and "Long Time Standing," as well.)

3. Assaults are categorically prohibited (see 18 U.S.C. 113) within the Special Maritime and Territorial Jurisdiction of the U.S., which is defined (18 U.S.C. 7) to include "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership."

4. For the armed services, there are longstanding, categorical criminal prohibitions, under the Uniform Code of Military Justice, on assaults (including threats), cruelty and maltreatment.

5. Pursuant to Article 17 of the Third Geneva Convention, "[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind."

In general, this means that the techniques used on POWs must be limited to those traditionally included in Army Field Manual 34-52, as reasonably construed (i.e., not as construed by the Schmidt Report).

6. The law of "rendition" remains much as I described it back in August: not much has changed.

7. All U.S. personnel must refrain from conduct that shocks the conscience. This is the result of the McCain Amendment. Although we don't know precisely how this standard would or should be applied to the interrogation of Al Qaeda detainees who may have valuable intelligence, it plainly lays down a marker that would materially affect current CIA practices.

* * * *

So, what more is needed? This much, at a minimum, I would say: A statute requiring strict adherence to the standards of Geneva Common Article 3 -- prohibitng "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." As I explained here, this is precisely the proposal endorsed by the 9/11 Commission, and by many military officers eager to restore the military's best, and historic, practices.

It is quite possible that this standard of conduct already applies to our treatment of all detainees, as a matter of binding treaty obligation. (That is, for instance, the thrust of Judge Williams's partial dissent in Hamdan, discussed here.) In any event, it is the standard that the United States was committed to upholding for over 50 years, in all manner of conflicts, against all sorts of enemies, even where the Executive branch did not think that it applied as a matter of treaty obligation. All that changed with the President's directive of February 7, 2002.

As the 9/11 Commission proposed, Congress should by statute restore the tradition that the President overturned with the stroke of a pen. In conjunction with the McCain Amendment, codification of Common Article 3 would go a long way to preventing the sorts of detainee abuse scandals that we have seen over the past two years.
Posted 11:18 AM by Marty Lederman [link]