So, Does the President Think That the CIA Should be Forbidden from Engaging in Cruel, Inhuman and Degarding Treatment?

Marty Lederman

From the President's press conference yesterday:

Q: Mr. President, I'd like to ask you about the Gonzales nomination, and specifically, about an issue that came up during it, your views on torture. You've said repeatedly that you do not sanction it, you would never approve it. But there are some written responses that Judge Gonzales gave to his Senate testimony that have troubled some people, and specifically, his allusion to the fact that cruel, inhumane and degrading treatment of some prisoners is not specifically forbidden so long as it's conducted by the CIA and conducted overseas. Is that a loophole that you approve?

THE PRESIDENT: Listen, Al Gonzales reflects our policy, and that is we don't sanction torture. He will be a great Attorney General, and I call upon the Senate to confirm him.

Imagine that: The President gets what would in almost anyone's view be the meatiest sort of softball question imaginable -- Do you approve of a legal "loophole" that permits the CIA to engage in cruel, inhumnan and degrading treatment of prisoners? -- and he can't offer an answer! Speaks volumes, doesn't it?

Posted 4:09 PM by Marty Lederman [link] (23) comments

The Constitution in Exile

JB

Over at ACSBlog, Jeff Jamison gives a good summary of concerns that the right wing of the Republican Party would like to restore a pre-New Deal "Constitution in Exile." Sanford Levinson and I argued back in 2001 that we were in the midst of a constitutional revolution, which would be extended or curtailed depending on succeeding Supreme Court appointments. I think the notion that conservatives want to restore a "Constitution in Exile" is helpful on the one hand but also a bit misleading on the other. What Republican constitutionalists seek, I would argue, is not so much a pre-New Deal Constitution but a pro-business Constitution. That means that the New Deal precedents will not be completely rolled back, but rather will be narrowed in order to facilitate a conservative domestic agenda. Indeed, some New Deal innovations-- particularly those regarding the increased scope of federal regulatory power, actually assist a pro-business agenda. Tort reform is a good example. The tort reform packages presently before Congress would have been unconstitutional according to the understandings of the pre-New Deal Constitution because they would have imposed too great an interference on state tort law, reaching, for example, both manufacturing and commerce.

Posted 7:34 AM by JB [link] (19) comments

Commodifying Virtual Worlds

JB

David Pogue professes to be mystified about why people are so concerned about buying and selling virtual property and identities in virtual worlds.

I’m floored by three aspects of this story: First, that so many people have that kind of time to become so immersed in computer games. Second, that people will actually pay that amount of money for fictional game tokens that have been "earned" (by playing the game) by somebody else.

And third, that anybody would get their knickers all in knots over the practice of selling these virtual items. (Blizzard and, for its part, Sony officially prohibit this practice in the rules, but there’s no such thing as game police.) OK, it’s not something I would do--but if there are willing buyers and sellers, what, exactly, is the harm?

Pogue's first comment should help explain the second and third. He hasn't yet figured out that these virtual spaces are more than mere games-- they are immersive virtual environments where lots of people spend a good part of their lives and form virtual communities that are immensely valuable to them. That is one reason why so much money is pouring into these worlds, and why as economist Ted Castronova once calculated, the GDP of some of these virtual worlds approaches (or exceeds) that of several developing countries.

Gamers (and game designers) generally have no problem with in-world commodification-- buying and selling things within the world, because that is part of what makes the simulation fun. Commerce helps create social fabric and civil society just as it does in real space. But many of them do have a problem with real world commodification, because that often gives people an unfair advantage within the space and can also undermine the virtual community. (To give only one example, people can buy and sell their identities as well as their items).

Pogue is mystified about the debate because he doesn't yet understand that massively multiplayer online games are evolving into something much more than mere entertainment. They are an remarkably important front in the evolution of cyberspace generally. Here a shameless plug for my recent University of Virginia Law Review article, "Virtual Liberty," on some of the legal problems of virtual worlds, and, in particular, how to preserve free speech rights and deal with real world commodification. My solution is to create different frameworks for different kinds of worlds, some of which permit real world commodification and some of which prohibit it, with fair warning both to game designers and players about their choices.

Posted 6:48 AM by JB [link] (24) comments

More Responses from Judge Gonzales

Marty Lederman

Judge Gonzales has submitted responses to supplememtal questions from Senators Feinstein, Leahy and Kennedy.

Here are some of the highlights:

1. In the post immediately below, and elsewhere, I've wondered how Secretary Rumsfeld, General Counsel Haynes, and other high-ranking DoD officials could have determined -- as they did -- that techniques such as waterboarding, forced nudity, threatening the death of family members, use of dogs to induce stress, etc., could possibly be lawful in light of (i) the Uniform Code of Military Justice; (ii) the prohibition in Article 16 of the Convention on Torture against cruel, inhuman and degrading treatment; and (iii) the President's February 2002 directive that the Armed Forces treat all detainees "humanely."

Well, we still don't know why the UCMJ doesn't apply. But we learned from Judge Gonzales's earlier responses that the Administration does not think Article 16 applies in U.S. facilities overseas (such as Guantanamo). And now we learn why the President's "humaneness" directive is no obstacle to the use of such grotesque techniques. Judge Gonzales writes that "the term 'humanely' has no precise legal definition," but that, "[a]s a policy matter, I would define humane treatment as a basic level of decent treatment that includes such things as food, shelter, clothing and medical care. I understand that the United States is providing this level of treatment for all detainees." If I'm understanding his answer correctly, Judge Gonzales is suggesting that by requiring the Armed Forces (but not, recall, the CIA) to provide "humane" treatment at a minimum, the President merely meant that detainees must be afforded "decent treatment that includes such things as food, shelter, clothing and medical care." Beyond that, apparently they can be waterboarded, they can be threatened with the death of their loved ones, dogs can be used to prey on their fears -- and even the clothing that is otherwise part of the basic "decent treatment" can be stripped from them for certain periods -- all without implicating the presidential directive. Defining humaneness down.

2. Senator Leahy asked straight-out whether Judge Gonzales agrees that the President may not use his Commander-in-Chief authority to "override" the torture statute and to "immunize the use of torture." The response: "No." (Followed by the standard assurance that "the United States will not use torture in any circumstances.") But if our Commander-in-Chief reserves the right -- theoretically, of course -- to immunize the use of torture under U.S. law, doesn't that assertion of Executive power invite Commanders-in-Chief of other nations to invoke a similar authority when they are of the view that emergency circumstances call for torture?

3. Judge Gonzales conveys the Administration's decision to refuse to provide Congress with numerous requested Executive branch documents concerning the treatment of detainees, even though: the Administration provided the 9/11 Commission with equally sensitive materials; the Administration has selectively made public other internal documents on the same subject matter; and the President has not invoked Executive privilege. Judge Gonzales states that "it is generally not the practice of this or prior Administrations to provide all documents requested by a Member of Congress where those documents contain highly deliberative or Preisdential communications." Depending on the meaning of the strange phrase "highly deliberative," this "practice" might, of course, threaten to eviscerate Congress's oversight role. May an Administration withhold from Congress all Executive branch deliberative materials that the President deems "highly deliberative," even where there is no claim of Executive privilege (and regardless of whether the documents are even classified)? This is a very important question.

4. In light of the Administration's conclusion that Article 16 of the CAT does not protect aliens overseas, Senator Feinstein asked Judge Gonzales wheher he believes Congress should pass a law to categorically outlaw cruel, inhuman and degrading treatment of aliens overseas. As I've noted in previous posts, the Administration has strongly resisted such legislative efforts in recent months. Notably, however, Judge Gonzales agrees "as a general matter" that it would be "appropriate" for the U.S. to enact such a statutory prohibition, if Congress could "surmount the considerable hurdles that would be faced by attempting to articulate a working definition of 'cruel, inhuman, or degrading treatment.'"

Please indulge me a modest attempt to "surmount the considerable hurdles" by proposing that Congress enact the following law: "It shall be unlawful for any U.S. employee, officer, or agent, anywhere in the world, to engage in conduct that would, if it occurred in the United States, 'shock the conscience' and thereby violate the Due Process Clause of the Fifth Amendment to the Constitution."

This would not resolve all definitional ambiguity. There remains some uncertainty about just which forms of conduct "shock the conscience" for purposes of the Due Process Clause. But there is an established and developing body of judicial case law on this question, and such an evolving constitutional doctrine could guide the interpretation of the statute I propose. The basic premise of the statute would be a simple one: The standards for treatment of a detainee should not turn on whether the United States decides to transport the detainee to Guantanamo, or to a secret foreign CIA facility, rather than to Puerto Rico or to South Carolina.
Posted 11:55 PM by Marty Lederman [link] (27) comments

Heather Mac Donald's "Few Bad Apples" Theory of Abuse

Marty Lederman

A couple of weeks ago, I posted a short critique of a recent article by Heather Mac Donald in the Manhattan Institute’s City Journal. Ms. Mac Donald has replied to my post on the City Journal website, and has asked that I link to her reply here, a request that I am happy to oblige.

Ms. Mac Donald’s principal argument in her reply is that the confirmed and alleged abuses at Abu Ghraib (and presumably also those in Afghanistan and Guantanamo) were not the result of Administration decisions in Washington about how to construe the law to permit severely coercive forms of interrogation of detainees, but instead were caused by the failure of “grunts on the ground” to adhere to the official policies that the Pentagon had promulgated. More specifically, Ms. Mac Donald argues that if interrogators had only limited themselves to the 24 specific techniques approved in Secretary Rumsfeld’s April 16, 2003 Memorandum, the torture scandal as we know it would never have occurred.

In sum, Ms. Mac Donald’s story is that the Pentagon developed a measured and reasonable protocol for interrogation; but that a bunch of bad apples ruined everything by going far beyond what the Pentagon had authorized. “The abuse in Iraq resulted from a violation of the rules, not from compliance with them.”

Before addressing Ms. Mac Donald’s very selective and misleading account, I think it’s important to emphasize that she and I appear to agree on at least two things:

First, my principal focus in posts here over the past couple of weeks has been the law as it applies to CIA interrogations, and the fact that the Administration has authorized the CIA to engage in cruel, inhuman and degrading treatment—just short of statutory “torture”—of non-Geneva-protected detainees outside the United States. In her original article, Mac Donald basically agrees: She reports that, according to “a former Justice Department official,” the CIA has been authorized to use techniques as extreme as waterboarding, i.e., submerging a detainee in water to induce the sensation of drowning. Beyond that, Mac Donald concedes that “[t]he CIA’s behavior remains a black box.” Mac Donald also agrees that the 2002 OLC Memorandum on the torture statute was intended to guide CIA conduct, that the memo was “hair-raising,” and that it “understandably caused widespread alarm.” She goes on to argue that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. I think that’s mistaken, for reasons I’ll explain below; but, in any event, Mac Donald and I do not disagree on the story about the CIA that’s at the heart of my series of posts—an account that has now been confirmed in Judge Gonzales’s answers to the Senate Judiciary Committee and in an L.A. Times story today that largely reiterates what I’ve been writing here (with the addition of a few quotations from John Yoo that confirm the basic gist of the CIA story).

Second, I do not disagree that if Rumsfeld’s April 16th Memorandum were the be-all and end-all that Mac Donald makes it out to be, we wouldn’t be having this torture debate today. The Rumsfeld Memo refers to all sorts of purported bureaucratic safeguards, and requires at a minimum that all detainees be treated humanely. I am skeptical about whether Rumsfeld sincerely believed that all of the approved techniques could consistently be applied “humanely.” But be that as it may, and assuming for the sake of argument that humaneness truly were an absolute requirement, then I agree that had the Administration not in practice gone beyond the letter of that April 16th memo, it’s unlikely we’d presently be faced with the legal questions and moral dilemmas that I and others have been discussing.

But, of course, the Administration has gone far beyond the April 16th Rumsfeld memo. Is the Pentagon itself responsible for this? Or should officials in Washington be shocked and outraged that operatives in the field have so cavalierly ignored Rumsfeld’s parameters? Truth be told, I am not very interested in assigning blame for what has happened thus far. That is a role better served by others who have much more access to the relevant information and who can put the historical pieces together much more accurately and comprehensively than I can hope to do. My objectives, instead, have been to try to ascertain just what the current policies and practices are, to untangle the Administration’s view of what current law permits, and to encourage a public debate about what the law ought to be, going forward.

Nevertheless, Ms. Mac Donald's specific argument warrants a few responses:

1. By their terms, the Rumsfeld rules were supposed to be limited to Guantanamo, where (according to the President) Geneva protections did not apply. Thus, Ms. Mac Donald claims that the Rumsfeld-approved techniques were used on only one detainee (Kahtani), that “the decision on the Geneva conventions was irrelevant to interrogation practices in Iraq,” and that “[e]veryone in the military chain of command emphasized repeatedly that the Iraq conflict would be governed by the conventions in their entirety.” We now know that to be wrong. Judge Gonzales has acknowledged the Administration’s determination that suspected insurgents in Iraq, like al Qaeda operatives, are not entitled to Geneva protection—which, among other things, presumably means that the CIA is free to use cruel, inhuman and degrading techniques on Iraqi insurgents, too (although this is not yet clear—in particular, we do not yet know how, if at all, the Administration is implementing Geneva Common Article 3 in Iraq). And Ms. Mac Donald herself begins her reply by citing chapter and verse of the Interrogation Rules of Engagement that were provided to all interrogators and soldiers in Iraq—rules that not only incorporate the techniques approved in the Rumsfeld April 16th memo, but also additional techniques (e.g., three days of sensory deprivation; 45 minutes of "stress position; isolation for more than 30 days) that go beyond Rumsfeld's rules -- and, therefore, well beyond what Geneva would allow and what has been permitted in the Army Field Manual for decades.

2. As applied by the military—even at GTMO—the Rumsfeld-approved techniques were not nearly so benign as they appeared on paper. For example:

-- Rumsfeld approved adjusting sleep cycles but not sleep deprivation. And yet the military reportedly employed prolonged sleep deprivation at GTMO. And in Iraq, the combination of the "sleep management" and "stress positions" techniques approved in the Rules of Engagement provided to all interrogators and soldiers in Iraq led to instances in which hooded detainees were required to stand still on a box for hours, which can lead to excruciating pain and disorientation. Thus, as Phillip Carter has suggested, the most iconic image from Abu Ghraib--that of a man standing hooded on a box with wires attached--was most likely an amateurish attempt by untrained MPs to implement two of DoD's approved techniques (sleep deprivation and stress position)--techniques that Ms. Mac Donald somewhat shockingly invokes on the very first page of her reply in support of her thesis that officially sanctioned techniques were moderate and reasonable.

-- Rumsfeld approved altering the environment to “create moderate discomfort.” At GTMO, that was translated as tormenting prisoners by chaining them to a low chair for hours with bright flashing lights in their eyes and audio tapes of Lil' Kim, Rage Against the Machine and Eminem played loudly next to their ears (or in some cases a tape mix of babies crying and the television commercial for Meow Mix in which the jingle consists of repetition of the word "meow");

-- Rumsfeld approved “false flag,” i.e., “convincing the detainee that individuals from a country other than the United States are interrogating him.” At GTMO, that apparently meant convincing detainees that they were being interrogated by individuals likely to torture them (i.e., effectively a threat of torture); and in at least one case, the “convincing” consisted of tranquilizing a detainee, placing him in sensory deprivation garb with blackened goggles, hustling him aboard a plane that was supposedly taking him to the Middle East, and bringing him (unknowingly) back to GITMO, where he was put in an isolation cell and there subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives.

Did the Pentagon condemn and punish these applications of the Rumsfeld techniques—which almost certainly violate the UCMJ, not to mention the President’s “humaneness” directive? Encourage them? Turn a blind eye? We don’t yet know for certain.

3. What explains the considerable gap between the Rumsfeld rules as written and the rules as applied? Well, to begin with, the Rumsfeld April 16th Memo was hardly the only guidance that was provided within the military. As I’ve previously recounted, the Fay, Jones and Schlesinger Reports explain in detail that the “existence of confusing and inconsistent interrogation technique policies,” including a “proliferation of guidance and information from other theatres of operation,” and the fact that personnel involved in interrogation in GTMO and Afghanistan “were called upon to establish and conduct interrogation operations in Abu Ghraib,” all contributed “to the belief that additional interrogation techniques were condoned in order to gain intelligence” (Jones 15-16; Fay 8, 10, 22). “The lines of authority and the prior legal opinions blurred” (Fay 10), and “DoD’s development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators at Abu Ghraib” (Fay Finding No. 7).

4. One prime example of this was Rumsfeld’s own approval on December 2, 2002 of much more severe techniques—including hooding, forced nudity, grabbing, poking and pushing, and the use of dogs “to induce stress.” To be sure, Rumsfeld rescinded that approval on January 15, 2003. But, more importantly, he did not, as far as we know, ever rescind his conclusion that these techniques were lawful. To the contrary, in that same January 15th memo, Rumsfeld specifically noted that the techniques could be used in a particular case if adequately justified and approved by Rumsfeld himself. Rumsfeld nowhere explained how such techniques could possibly pass muster under the UCMJ or the President’s February 2002 directive.

5. Even more telling is the November 27, 2002 memorandum of DoD General Counsel William Haynes, in which Haynes relates to Rumsfeld his conclusion—which was approved by a Deputy Secretary, by Doug Feith, and by General Myers—that not only the techniques Rumsfeld approved on December 2d, but also the following techniques, were “legally available”:

-- “The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family”:

-- “Exposure to cold weather or water (with appropriate medical monitoring)”; and

-- “Use of a wet towel and dripping water to induce the misperception of suffocation.”

Let’s be very clear about this: The DoD General Counsel (who’s recently been renominated for a seat on the U.S. Court of Appeals for the Fourth Circuit) concluded that threats of killing a detainee’s family members, and waterboarding, and forced nudity, and the use of dogs to induce stress, etc., not only did not violate the UCMJ, but are “humane”! There is no indication in the public record that Secretary Rumsfeld or any other high-level DoD official ever contradicted or overruled these legal conclusions—and every indication that Rumsfeld agreed with them.

6. Rumsfeld then directed Haynes to establish the DoD Working Group to address the legal issues. The Working Group included representatives of the General Counsels and JAGs of all the Armed Forces, of the Office of the Undersecretary of Defense for Policy and the DIA. The Working Group exhaustively canvassed all of the possible legal constraints—including the UCMJ—and then concluded on April 4, 2003 that the following are among the techniques that are lawful for military interrogations: placing a hood over detainees during questioning; 20-hour interrogations; four days of sleep deprivation; forced nudity to create a “feeling of helplessness and dependence”; increasing “anxiety” through the use of dogs; quick, glancing slaps to the face or stomach; and the threat of transfer to another nation that might subject the detainee to torture or death.

7. How could all of these DoD lawyers and top-ranking officials (including Rumsfeld and Feith) possibly conclude that these techniques were “humane”? That such techniques would not obviously violate the UCMJ (including its prohibitions on cruelty, oppression, maltreatment, assaults and threats)? That such techniques would not be “cruel, inhuman and degrading,” and thus violate Article 16 of the Convention Against Torture? One possibility—the only possibility that comes to mind—is that DoD was influenced by OLC's conclusion that the President could, pursuant to his Commander-in-Chief power, override these legal constraints, and could in effect immunize such conduct, thereby rendering inoperative the UCMJ, Article 16, and the President’s own “humane treatment” directive—a conclusion that was adopted almost verbatim as a detailed component of the DoD Working Group Report.

8. Ms. Mac Donald argues that neither the more aggressive DoD “proposals,” nor the DOJ analysis of the Commander-in-Chief power, could possibly have influenced what she refers to as the “grunts on the ground in Iraq,” because none of those analyses and techniques made their way into Rumsfeld’s set of approved techniques on April 16th. I suppose that’s theoretically possible—that in the 12 days between the Working Group Report and Rumsfeld’s April 16th Memo, DoD finally did an about-face and realized that all of these other, more extreme techniques were unlawful. But there’s no reason for us to think so. And the Fay Report directly contradicts this theory: “The lines of authority and the prior legal opinions blurred” (Fay 10), and “DoD’s development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators at Abu Ghraib” (Fay Finding No. 7).

Are we really supposed to assume that the legal analysis permeating one Pentagon document after another never found its way out of Northern Virginia? Isn’t it more realistic to assume, for example, that Major General Miller—who was sent to Iraq to “GTMOize” the interrogation procedures there—was fully aware of the DoD conclusions that threats of death, use of dogs, forced nudity, waterboarding, etc., are not only lawful but “humane”? And isn’t it also fair to assume that General Miller’s understanding of what is lawful and humane—even if not expressly authorized by Rumsfeld on April 16th—might have contributed to the interrogation regime over which he had authority in Iraq?

Moreover, when the soldiers "on the ground" in Iraq repeatedly sought specific advice about proper interrogation parameters, the Pentagon was, at best, suspiciously unforthcoming about the governing rules. This is the way General Paul Kern, the appointing authority for the Jones/Fay investigations, delicately put the point: "The people who were conducting the interrogations clearly were feeling a lot of pressure to produce intelligence, as they should have been. That's what the purpose of the interrogation is. And in looking for . . . guidance, they were submitting requests back and forth, which were never in our view completely clarified. So they were using drafts of other processes that they had known and they were asking for clarity, which in the end resulted in a couple of memos which were published by the Combined Joint Task Force for them to use. But in the end, it did not absolutely make it clear what the boundaries were." Gosh, it's really a shame, isn't it, that no one thought to simply promulgate the Army Field Manual in response to such requests for guidance in Iraq? Indeed, even if the Pentagon had concluded that the Rumsfeld rules for GTMO should have applied to Iraq, how hard would it have been to circulate those rules--along with their limitations and bureaucratic safeguards--to all Iraqi interrogators? Was the failure to provide any such consistent, clear guidance a simple oversight?

9. But that’s not all. Even putting aside the possible influence of the legal conclusions in numerous Pentagon documents, we must also consider what the military interrogators at GTMO and in Iraq were observing. For one thing, the Fay Report relates that the extreme techniques used by the CIA, based upon OLC legal advice, “led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib” (pp. 52-53). Indeed, the CIA practices and techniques led to a “perception” that such techniques and practices “were suitable and authorized for DoD operations” (pp. 118-119).

10. Furthermore, such extreme techniques apparently are not reserved for use by the CIA, or for use upon “high value” al Qaeda detainees. Seymour Hersh reported last May that Rumsfeld and Under-Secretary Cambone have established secret special access programs (SAPs) within DoD that are authorized to use rough treatment, and sexual humiliation, in interrogating not only suspected al Qaeda operatives, but also the numerous persons rounded up as possible “insurgents” in Iraq. As Bart Gellman reports in today’s Washington Post, Rumsfeld has further concluded that such operations need not be disclosed to Congress. If these reports are correct, there is a wholly secret interrogation regime within the Department of Defense that is playing by rules quite different from those found in Rumsfeld’s April 16th memo.

* * * *

In sum, it’s fair to conclude that Rumsfeld’s April 16th Memorandum was barely the tip of the iceberg, and that much more coercive, and more legally dubious, techniques have been approved for use—by the CIA and DoD—not only at GTMO and at secret CIA facilities, but in Iraq, as well. At the very least, the highest echelons of the Pentagon have determined—in at least several documents—that extremely harsh and coercive measures such as waterboarding, threatening to kill detainees and their families, and forced nudity, are not only legal but “humane,” notwithstanding several legal norms that would appear to prohibit such techniques. Did high-level Pentagon officials approve the particular, virulent forms of abuse that we’ve seen at Abu Ghraib? Of course not. (As Phillip Carter has written, it's not surprising that there is no "smoking gun" in the form of a chain of orders leading directly from Donald Rumsfeld to Lynndie England.) But that’s not the relevant question. The techniques that they have approved, or encouraged, or simply tolerated, would be more than disturbing enough even if the problem had gone no further. And once one understands what the Pentagon and the CIA did in fact approve, and what they repeatedly characterized as lawful and “humane”—such as waterboarding, forced nudity and sexual humiliation—it’s not hard to imagine how atrocities such as those at Abu Ghraib could also have occurred. Indeed, it is difficult to resist Phillip Carter's conclusion that "[t]he devastating scandal of Abu Ghraib wasn't a failure of implementation, as Rice and other administration defenders have admitted. It was a direct—and predictable—consequence of a policy, hatched at the highest levels of the administration, by senior White House officials and lawyers, in the weeks and months after 9/11." For further extensive eloquent treatment of this theme, see Andrew Sullivan’s landmark essay in today’s New York Times Book Review.

Finally, I can’t help noting the irony in the fact that Ms. Mac Donald now places such heavy reliance on Rumsfeld’s April 16th memo as the exemplar of a “reasonable and lawful response to the very real problem of detainee resistance to questioning.” I had thought that the whole point of Mac Donald’s original article was that interrogation techniques cannot be effective against al Qaeda unless and until they are made (i) far more coercive; and (ii) much less transparent. If U.S.-approved techniques are publicly known, she reasoned, “interrogators have lost the ability to create the uncertainty vital to getting terrorist information.” Al Qaeda suspects must be led to believe that U.S. law does not limit what our interrogators can do, something that Mac Donald suggests is only possible if ours is a secret law, with few, if any, acknowledged limits, and/or with rules that are easily broken or evaded. If the seven new techniques that Rumsfeld authorized on April 16, 2003 truly did, as Mac Donald now suggests, embody the outside limits of the techniques that U.S. interrogators are authorized to use, they would (on Mac Donald’s account) be hardly more useful than the 17 historical, and widely known, Army Field Manual techniques that Rumsfeld purported to supplement. However, as the world (including al Qaeda) now knows all too well, the April 16th memo does not begin to describe the outer limits of the extreme measures that the military and, especially, the CIA, have been authorized to use. The true, full account of what the Administration has authorized in the service of interrogation remains largely a mystery.

Posted 11:31 PM by Marty Lederman [link] (34) comments

Bush's Second Inaugural Address

JB

I liked Bush's second inaugural address, which argued for the cause of freedom around the world, very much. I also liked his first inaugural address, which sounded very moderate, spoke of justice, tolerance, and aid to the poor, and pledged to work together with everyone. However, I also remember that his performance in is first term reflected very little of his pretty words.

My view about Bush's second inaugural is quite similar. Who could be against promoting the cause of liberty around the world? There were phrases in this speech that could have come from Woodrow Wilson or, for that matter, Jimmy Carter. The real questions are (1) whether Bush means what he says, and (2) whether he has the competence to carry out his promises.

After all, we are currently in a very difficult war in Iraq because Bush insisted that he knew what he was doing in responding to a threat from Saddam's weapons of mass destruction, weapons that turned out not to have been there. As it became increasingly clear that the weapons were nowhere to be found the President shifted gears and informed us that all along his primary and real goal had been to bring democracy to Iraq and hence to the Middle East.

But let us assume that the President is completely sincere, and that the experience of 9/11 and the wars in Afghanistan and Iraq has shown him the light, so that he truly does understand that the promotion of freedom around the world is and should be his primary goal. Good for him. Still, if I were to trust anyone to carry out this goal, I would not choose George W. Bush based on his first term performance, a performance that has sufficiently stretched our economic and military capacities that we are practically unsuited to make realistic threats of force anywhere else in the world that would make our diplomacy effective. The problem is that because of Iraq, all we can do is talk big, but do little. Very much, I fear, like Bush's second inaugural itself.

Posted 8:39 AM by JB [link] (15) comments

Delayed Plebiscite

Ian Ayres

While many people have suggested delaying the election, a cool op-ed in the New Times today recommends a delayed plebiscite:

Ask Iraqi voters in a referendum six weeks after the national elections if
they think foreign soldiers should withdraw immediately. Let the Iraqis
debate what the absence of American forces will mean for their families and
nation. Tell them we'll hold the referendum every nine months until they
vote us out or we determine it's time to leave.

Barry Nalebuff and I made a similar proposal on this very blog back about a month ago. We were debating submitting it to the Times today, when low and behold. Sadly the time to combine the plebiscite with the national election has probably past. But a non-lagged plebiscite might have played an important role in getting Sunnis to participate in the election. And it would force the politicians to speak more honestly with an electorate that with the exception of Kurds tells Gallop that it wants the U.S. to leave.

Posted 3:19 PM by Ian Ayres [link] (11) comments

Judge Gonzales' Senate Responses

Marty Lederman

Judge Gonzales has submitted over 100 pages of responses to written questions propounded by members of the Senate Judiciary Committee (and by Senator Levin). Here are links to Judge Gonzales' responses to questions of:

Senator Biden;

Senator Coburn;

Senator Durbin (Part I) (Part II);

Senator Feingold;

Senator Feinstein;

Senator Graham;

Senator Grassley;

Senator Hatch;

Senator Kennedy (Part I) (Part II) (Part III);

Senator Kohl;

Senator Leahy;

Senator Levin;

Senator Schumer;

Senator Sessions; and

Senator Specter.

I've quickly reviewed most of the responses. These are among the highlights with respect to the issues about which I've been blogging recently (e.g., torture, interrogation, the CIA, the Geneva Conventions, the Office of Legal Counsel -- scroll down to posts of January 7, 11, 12 and 14). They appear primarily in the responses to questions from Senators Durbin, Feingold, Feinstein, Kennedy, Leahy and Levin:

1. AUTHORITY OF THE CIA TO ENGAGE IN CRUEL, INHUMAN AND DEGRADING CONDUCT

a. The responses confirm what has been manifest for a while now: The Administration has concluded that the CIA, when it interrogates suspected Al Qaeda detainees overseas, may lawfully engage in "cruel, inhuman and degrading" treatment--i.e., treatment that would "shock the conscience," and thus be unconstitutional, within the United States--as long as that treatment does not constitute "torture" under the very narrow meaning of that term in the federal criminal law. Judge Gonzales confirms that the CIA, unlike the Armed Forces, is not bound by the UCMJ (including the prohibition on cruelty and maltreatment of prisoners), and is not subject to the President's February 2002 directive that detainees be treated "humanely." Moreover, according to Judge Gonzales, "the Department of Justice has concluded" (in documents we have not seen) that the prohibition on cruel, inhuman and degrading treatment in Article 16 of the Convention Against Torture does not apply to aliens overseas because Article 16 merely incorporates what the Due Process Clause forbids--and the Due Process Clause does not, in the Administration's view, apply to aliens outside the U.S. (This last assumption, about the absence of any extraterritorial application of the Due Process Clause, is the subject of current dispute in litigation involving Guantanamo detainees.) The responses do not expressly reveal whether Article 16 protects detainees at U.S. facilities overseas, such as at GTMO and in Iraq; but if the Administration's previous views about the geographic reach of the Constitution are any indication, its answer will be that Article 16 is inapplicable in those locations, as well.

b. Although the Administration is not "legally required" to refrain from conduct that "shocks the conscience" overseas, Judge Gonzales asserts that the Administration nevertheless "want[s] to be in compliance with the relevant substantive constitutional standard incorporated into Article 16," and he further represents that he "had been advised" (interesting use of tense) that "approved interrogation techniques were analyzed under that standard and satisfied it." "Since that time," however, "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." If and when the Administration determines whether any of its approved interrogation techniques would violate the Article 16 substantive standards, it is not clear what would happen to such techniques (because they are not unlawful); and it is also not clear that the public or the Congress will be made aware of the results of the comprehensive legal review (see the paragraphs concerning OLC, below).

c. Despite "want[ing]" to be in compliance with the substantive prohibition on cruel, inhuman and degrading treatment, the Administration remains resolutely opposed to any statutory initiative to make that prohibition a legal requirement, because foreign prisoners should not be provided "legal protections . . . to which they are not now entitled." In other words, they "want" U.S. persoto refrain from conduct that shocks the conscience--but they will resist any effort to legally prohibit CIA personnel from engaging in such conduct.

d. In response to questions concerning the legality of a series of specificed techniques--including waterboarding, use of dogs to induce stress, forced nudity, hooding, sensory deprivation, food and sleep deprivation, exposure to extreme temperatures, a face or stomach slap, the forcible injection of mood-altering drugs, mock executions, and threatening to send detainees to countries where they would be tortured--Judge Gonzales allows that "[s]ome of these activities, at least under certain factual assumptions, might very well be prohibited," even if "[s]ome might likewise be permissible in specific circumstances, if appropriately limited, depending on the nature of the precise conduct under consideration." [UPDATE: Indeed, Judge Gonzales goes so far as to state that it would not be "appropriate" for him to "attempt to analyze" the legality of reported practices such as forced enemas, infliction of cigarette burns, and binding detainees hand and foot and leaving them in urine and feces for 18-24 hours! Judge Gonzales concedes that 18 U.S.C. 113 prohibits intelligence agents from committing assault within the special maritime and territorial jurisdiction of the U.S. Wouldn't it be a simple thing to acknowledge that cigarette burns and forced enemas are unlawful assaults? Or is Judge Gonzales perhaps preserving the argument that such conduct might not be unlawful if performed by the CIA outside the U.S. special maritime and territorial jurisdiction, e.g., in a foreign-operated detention facility?]

Moreover, Judge Gonzales repeatedly refuses to reveal whether and under what circumstances any such techniques have in fact been approved as legal for use by any U.S. personnel, because he reasons that to categorically and publicly rule out a particular technique "would provide al Qaeda with a road map concerning the interrogation that captured terrorists can expect to face and would enable al Qaeda to improve its counterinterrogation training to match it."

There are at least two problems with this response:

First, the Administration has already voluntarily disclosed extraordinary detail concerning the specific methods that Secretary Rumsfeld ostensibly has approved for DoD interrogations of non-Geneva-protected detainees at GTMO. And as to the vast majority of persons the U.S. has detained, in this war and many others over the past several decades, the legal and acceptable interrogation techniques were circumscribed by the Geneva Conventions, and are spelled out in Army Field Manual 34-52, which is available online. If the U.S. has been forthcoming about what its law prohibits in the past (and currently, as to the DoD), why must there be secrecy as to the most disturbing and questionable of our approved techniques?

Second, and in any event, why can't the Administration provide classifed briefings to the Senators in which it answers these questions? At the very least, the Congress should know just what it is permitting the CIA to do when it chooses (as it has done twice in recent months) to scuttle a statutory amendment that would categorically prohibit the U.S. from engaging in cruel, inhuman and degrading treatment of detainees.

2. APPLICATION OF GENEVA CONVENTIONS IN IRAQ

Judge Gonzales reaffirms the Administration's long-stated position that the Geneva Conventions apply to the conflict between the United States and Iraq, and that Iraqi military personnel who satisfy the criteria of Article 4 are entitled to POW status under Geneva. He clarifies, however, that other actors in Iraq, such as insurgents, who take up arms without complying with the criteria of Article 4, "may not be legally entitled to protections under [Geneva]." If this is so, it may explain why the Administration apparently concluded that it could authorize extremely harsh and coercive interrogation techniques against such persons even in Iraq. (What is much less clear is the basis for the Administration's apparent decision to permit military personnel, rather than the CIA, to engage in what Seymour Hersh described as "physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq." Such conduct by personnel in the Armed Forces would appear to violate both the UCMJ and the President's directive that the military must treat all detainees humanely.)

Moreover, Gonzales suggests that the Fourth Geneva Convention, with its protection of civilians, no longer applies to civilians detained by the U.S. now that the U.S. is no longer an occupying power. [QUESTION FOR THOSE WHO ARE FAMILIAR WITH THE GENEVA CONVENTIONS: If Gevena IV does not apply to protect civilian detainees of a non-occupying power, which, if any, of Geneva's protections do protect such civilian detainees?]

3. ROLE OF THE OFFICE OF LEGAL COUNSEL

a. Judge Gonzales concurs with the principle that some of us former OLC'ers promulgated last month that OLC's duty and fucntion is to provide the President and the Executive Branch with an accurate and honest analysis of the law, even where that candid and impartial analysis would constrain the administration's pursuit of policy goals, and he pledges to work with the Assistant AG for OLC "to ensure that OLC continues to employ the practices necessary to meet the highest standards of legal analysis."

b. However, contrary to another of the principles that we've recommended, Judge Gonzales at several places declines to provide the Senate with copies of OLC Opinions, or to reveal the conclusions contained in such Opinions, even where such Opinions presumably provided the legal basis for Executive Branch action. In defense of this lack of transparency, Judge Gonzales writes that "[t]he longstanding practice is that non-public OLC opinions are not disclosed outside the Executive branch."

With all respect, this explanation is simply question-begging. Preventing disclsoure outside the Executive Branch is what it means for an OLC Opinion to be "non-public." The question Judge Gonzales fails to answer is why he is choosing to keep these Opinions "non-public." He invokes the "deliberative processes of the Executive Branch and the attorney-client relationship between Administration officials and OLC." To be sure, that relationship could suffer if OLC were to publicly disclose all of its Opinions--including those reflecting classified information or those in which OLC concludes that proposed Executive action would be unlawful. But where the OLC opinion is not classified, and it provides the legal rationale for Executive action that is thereafter undertaken, there is rarely any compelling reason to prevent the public from knowing the legal basis for its government's actions.

Posted 7:35 PM by Marty Lederman [link] (22) comments

Boys, Girls, and Harvard

Mark Graber

The president of Harvard University, who seems to think that men have a genetic predisposition to math and the sciences, might benefit from taking a look at the Montgomery County (Maryland) magnet programs. Superficially, boys seem to gravitate toward sciences and math more than girls. The ratios strike me (all of these observations are just impressions) as about 3-2, both in the magnet program and in the honors given out for sciences and math (i.e., the gender ratio of super magnet students seems about the same as the gender ratio in the magnet program). In short, if there is a genetic advantage, it’s the equivalent of about three inches in basketball. Useful, but there are a lot of 6'3" guards in the NBA who compete with their 6'6" peers. Certainly, nothing in the science magnets would lead one to think that boys enjoy the sort of genetic advantage that would lead to the enormous disparities in tenured faculty in the sciences at Harvard and other universities of that ilk.

Other disparities exist in the math/science programs, both in the programs themselves and in the students who win awards. Initial impressions suggest a disproportionate number of students with Asian surnames and, to a lesser extent, Jewish surnames, appear on the honors lists.. I expect the same is true of elite math and science departments. Does Larry Summers believe that Asians and Jews are genetically predisposed to math and sciences? Why is the success of some groups more often attributed to genetic predisposition and other groups to culture (or hard work)? Given my druthers, I’d rather have any success I might enjoy be attributed to something like hard work, which seems in my control, than to my genes.

Curiously, Larry Summers does not seem to have taken a look at humanities. In these disciplines, younger girls are dominating their male peers. The year my younger daughter applied to the middle school humanities magnet, the initial acceptances were 94 girls and 6 boys. Given the stature of the program in question, this seems to be genetic superiority greater than the 3-2 ratio in the math program. Indeed, the later ratio might simply be a consequence of bright girls being more rounded that bright boys (i.e., more girls who got into the math program elected to go to the humanities program than boys who got into the humanities program opted for math). And from what I gather, traditional liberal arts colleges are starved for qualified boys. These observations prompt several questions..

Why does the president of Harvard focus only on those academic areas where superficial numbers suggest boys do slightly better than girls, ignoring those academic areas where initial impressions suggest girls do much better than boys?

Rather than genetics, doesn’t it seem more likely that the tenured faculty in science departments are overwhelmingly male for the same environmental reasons which explain why most English departments have at least as many tenured men as women? Men in our society improve their standing vis-a-vis women in all disciplines from high school and college to professional life. When men start with a slight advantage, they wind up with almost total control. When men start with a severe disadvantage, they obtain equality, if not some advantage. This is culture, not genetics, unless one assumes the genetic effects of masculinity only kick in around age 25. This notion, obviously absurd, also contradicts medical observations that genetic predispositions generally begin to exert their influence early in life.

At the same time that women have more successfully infiltrated English departments than Physics departments, the pay for tenured physicists has increased at a much faster rate than the pay for tenured humanists. Science is, of course, wonderful, but it strikes me that we presently could use a few more people with expertise in third world culture and languages (which by Summerian standards women have greater natural talent than men), and yet language and cultural education are among the lowest paid disciplines in the academy.

Many institutions have responded to the boy/male crisis in the humanities by lowering their standards for boys. Montgomery County did this publicly after only 6 boys were initially offered acceptance into the humanities program. Much anecdotal evidence indicates that many liberal arts colleges have similarly lowered standards for boys in the name of diversity. Where is the conservative outrage? Or is the real meaning of diversity that advantaged groups must be represented at a university no matter what their objective qualifications.

Posted 7:30 PM by Mark Graber [link] (17) comments

Why Should I Trust This Man?

JB

When President Bush tells me that the Social Security system is in crisis, and that the only way to fix it is through privatization, should I trust him? Well, let's see; he has made misleading claims about almost every important policy issue I care about. And perhaps the most major crisis he put before the American public was the imminent threat posed by Saddam Hussein's weapons of mass destruction, which, by the way, the Administration has finally admitted were not there. You might give him the benefit of the doubt for deception on that one, at least, although as Matthew Yglesias points out, there was plenty of evidence at the time that inspections were working, if you hadn't already made up your mind for war.

No, I don't think I trust the man. In fact, I think he's misleading the American public once again.

Harold Meyerson puts it more bluntly:

[W]hen historians look back at the Bush presidency, they're more likely to note that what sets Bush apart is not the crises he managed but the crises he fabricated. The fabricated crisis is the hallmark of the Bush presidency. To attain goals that he had set for himself before he took office -- the overthrow of Saddam Hussein, the privatization of Social Security -- he concocted crises where there were none.

So Iraq became a clear and present danger to American hearths and homes, bristling with weapons of mass destruction, a nuclear attack just waiting to happen. And now, this week, the president is embarking on his second great scare campaign, this one to convince the American people that Social Security will collapse and that the only remedy is to cut benefits and redirect resources into private accounts.

In fact, Social Security is on a sounder footing now than it has been for most of its 70-year history. Without altering any of its particulars, its trustees say, it can pay full benefits straight through 2042. Over the next 75 years its shortfall will amount to just 0.7 percent of national income, according to the trustees, or 0.4 percent, according to the Congressional Budget Office. That still amounts to a real chunk of change, but it pales alongside the 75-year cost of Bush's Medicare drug benefit, which is more than twice its size, or Bush's tax cuts if permanently extended, which would be nearly four times its size.

In short, Social Security is not facing a financial crisis at all. It is facing a need for some distinctly sub-cataclysmic adjustments over the next few decades that would increase its revenue and diminish its benefits.

Politically, however, Social Security is facing the gravest crisis it has ever known. For the first time in its history, it is confronted by a president, and just possibly by a working congressional majority, who are opposed to the program on ideological grounds, who view the New Deal as a repealable aberration in U.S. history, who would have voted against establishing the program had they been in Congress in 1935. But Bush doesn't need Karl Rove's counsel to know that repealing Social Security for reasons of ideology is a non-starter.

So it's time once more to fabricate a crisis. In Bushland, it's always time to fabricate a crisis. We have a crisis in medical malpractice costs, though the CBO says that malpractice costs amount to less than 2 percent of total health care costs. (In fact, what we have is a president who wants to diminish the financial, and thus political, clout of trial lawyers.) We have a crisis in judicial vacancies, though in fact Senate Democrats used the filibuster to block just 10 of Bush's 229 first-term judicial appointments.

With crisis concoction as its central task -- think of how many administration officials issued dire warnings of the threat posed by Saddam Hussein or, now, by Social Security's impending bankruptcy -- this presidency, more than any I can think of, has relied on the classic tools of propaganda. Indeed, it's almost impossible to imagine the Bush presidency absent the Fox News Network and right-wing talk radio. . . . I can't think of [a president] so fundamentally invested in the spread of disinformation -- and so fundamentally indifferent to the corrosive effect of propaganda on democracy -- as Bush. That, too, should earn him a page in the history books.

Posted 10:43 PM by JB [link] (22) comments

The White House Dissembles on Torture and the CIA's Authority to Engage in Cruel, Inhuman and Degrading Treatment

Marty Lederman

Yesterday's New York Times reported what I've been endeavoring to demonstrate for the past several days: That the Administration has worked assiduously to preserve the legal authority of the CIA to engage in highly coercive, often inhumane interrogation techniques against suspected Al Qaeda operatives at secret locations outside U.S. jurisdiction. When the Senate -- acting on the recommendation of the 9/11 Commission -- recently voted overwhelmingly to withdraw that CIA authority to employ such inhumane treatment, the White House expended a great deal of effort in the Conference Committee to preserve the status quo legal regime. They were quite candid about their objective: Dr. Rice wrote a letter to members of Congress opposing the (Durbin) provision because it would "provide[] legal protections to foreign prisoners to which they are not now entitled under applicable law and policy.'"

Not surprisingly, at today's White House press briefing, the press corps pushed Press Secretary McClellan on the issue. The resultant exchange, which I've excerpted below, is equal parts obfuscation, deceit and contempt--a true classic, even by the very high standards of modern White House Press Secretaries, and reminiscent of nothing so much as Abbott and Costello's "Who's On First?" routine. McClellan found a dozen different ways to refuse to identify exactly which legal protections the Durbin Amendment would have afforded foreign prisoners to which they are not presently "entitled."

Despite McClellan's best efforts, the answer is no longer a secret--but, contrary to some news accounts, the answer is not that the Administration was attempting to preserve a right to engage in "torture," at least as that term is defined in U.S. law. Federal criminal law already categorically prohibits torture. Therefore, the CIA may not use torture, even overseas and even against suspected Al Qaeda personnel. In this sense, the Durbin Amendment--which would have prohibited "torture"--was superfluous.

The problem, which I've tried to explain in somewhat soporific detail in posts here, here, here, here, here and here, is that Congress (at the urging of Presidents Reagan and George H.W. Bush) has defined the term "torture" exceedingly narrowly--so narrowly, in fact, that OLC has concluded it does not cover techniques such as waterboarding, threats of live burial, and threats of rendition to nations that do torture. Those forms of highly coercive interrogation, going just up to the line of "torture" without going over, are generally unlawful, not because they are "torture," but because they fall within the category of conduct denominated "cruel, inhuman and degrading ("CID") treatment," i.e., conduct that "shocks the conscience" and hence would violate due process if it occurred within the U.S. Such CID treatment is categorically off limits to the military by virtue of the Uniform Code of Military Justice and the President's directive that the military treat all detainees "humanely." Such CID treatment is also categorically prohibited -- even for the CIA -- with respect to detainees protected by the Geneva Conventions; and such CID treatment would (by definition) be unconstitutional -- even for the CIA and even as applied to Al Qaeda detainees -- here in the U.S.

But the Administration has concluded the CID treatment is not unlawful when the CIA interrogates Al Qaeda suspects outside U.S. jurisdiction. As you'll see, McClellan repeatedly "pointed to" numerous soures of law, including statutes, treaties, and a "policy" statement enacted as part of the Defense Authorization bill. What McClellan failed to note was that the Administration does not believe that any of these sources of law bind the CIA acting outside U.S. jurisdiction and outside Geneva. Thus, according to the Times (but adroitly overlooked by McClellan), the Department of Justice has advised the CIA that it may in such cases use 20 so-far undisclsoed techniques, including waterboarding, even though such techniques may be cruel, inhuman and degrading (i.e., that would be unconstitutional if used in the U.S.), because, in DOJ's judgment, they do not quite result in the level of "prolonged" pain necessary to trigger the statutory definition of "torture." (The new OLC memo on torture is careful to note that it does not call into question the legality of these previously sanctioned CIA authorities.)

The Durbin Amendment would have categorically prohibted the use of CID treament, even for the CIA outside U.S. jursdiction. But the Administration successfully worked to ensure that the Agency can continue to use such inhumane techniques when interrogating Al Qaeda suspects outside U.S. juridiction, as long as it does not cross over the line to "torture."

Excerpt from White House Press Briefing:

Q Scott, why did the White House block or muscle Congress out of adding legal protections for foreign prisoners in U.S. custody, protections against extreme interrogation measures?

MR. McCLELLAN: Well, I disagree with your characterization, first of all. I think that there were people on both sides of the aisle and in both the Senate and House that supported the view that we took, and it was a view that we stated publicly. And, of course, we are going to state privately what we state publicly.
We did not view the provision as necessary because there are already laws on the book to address these issues. There is a provision included in the Defense Authorization Act to address some of these issues. There are -- there is the Convention Against Torture. There is the -- there are criminal statutes against torture in the United States. And our policy is to comply with our laws and our treaty obligations. That's the policy of the United States.

Q If we could get down to brass tacks here, the purpose of this proposed law was to make sure that CIA interrogators have to abide by the same standards as Defense Department interrogators. And the White House didn't want that. Is that because you want CIA interrogators to be able to get rougher and tougher?

MR. McCLELLAN: We want everybody throughout the government to comply with the policy of the United States, which is to follow our laws and our treaty obligations. The President has made it very clear that we don't condone torture, and nor -- and he would never authorize the use of torture. He's made that very clear.
I just pointed to the Convention Against Torture. It addresses the treatment of detainees and the use of torture. I pointed to our criminal statutes. We have criminal statutes on the book that address these issues. There is also language in the Defense Authorization Act that addressed these issues, as well. And so we didn't view it as necessary.

Q I'm trying to get -- he doesn't condone torture. The question is, what does the President condone? And in your letter to Congress in October, the one you're referencing here, you said --

MR. McCLELLAN: That we released to you all publicly in October.

Q I recall that. Yes, indeed, it was publicly released. And I confess, I missed this line, so I'd ask you to explain it now. "The administration also opposes section 1014 of S2845 which provides legal protections to foreign prisoners to which they are not now entitled." What legal protections does the President believe foreign prisoners in U.S. country -- in U.S. custody shouldn't have?

MR. McCLELLAN: The President has made very clear what our policy is, and he expects the policy to be followed. The policy is to comply with our laws and with our treaty obligations. The criminal statutes of the United States specifically talk about -- you bring up an issue about people outside the United States -- the criminal statute of the United States specifically says that -- or imposes criminal penalties on "whoever outside the United States commits or attempts to commit torture." So there are already laws on the book that address this issue.
That's why I said that their provision -- or the provision in this legislation is something that we viewed as not necessary because it's already addressed in international treaties, in our laws, and in the Defense Authorization Act.

Q What legal protections shouldn't those prisoners have in the President's view?

MR. McCLELLAN: I just made very clear what our view is when it comes to the treatment of detainees.

Q What didn't he want --

MR. McCLELLAN: There are laws and treaty obligations that we expect them to abide by. And if you follow up the very next sentence in that letter, it says that Section 1095, which is actually Section 1091 -- that should have said Section 1091 --

Q That's why I couldn't find it.

MR. McCLELLAN: There you go, the legal mind -- of the proposed National Defense Authorization Act for fiscal year 2005 already addresses this issue. Now, let me tell you about Section 1091, while we're talking about this issue. Section 1091 says that it is the policy -- this is Part B -- "It is the policy of the United States to ensure that all personnel of the United States government understand their obligations in both wartime and peacetime to comply with the legal prohibitions against torture, cruel, inhumane, or degrading treatment of detainees in the custody of the United States."

* * * *

Q Could I just get a clarification on the foreign prisoners issue?

MR. McCLELLAN: Sure.

Q What the language said was that the legislation the administration opposed was -- would have provided legal protections to which they are not now entitled. What was it in the proposed legislation that went beyond existing law?

MR. McCLELLAN: Well, I just told you what -- the fact that the laws already cover the issues and we didn't view the provision as necessary.

Q Right, they were clearly proposing something --

MR. McCLELLAN: And we are in -- we're talking about the global war on terrorism. We are in a different kind of war. We are seeing that we face new, dangerous threats, and there are people who do not abide by the rule of law or follow the rule of law. They are people who have no regard for the rule of law; they have no regard for innocent civilians, as I talked about, and they are not parties to any of the international treaties. And we're talking about unlawful enemy combatants who seek to do harm to the civilized world and the people of the civilized world, because they espouse an ideology of hatred and oppression.

Q Was Congress trying to treat them like they were uniformed people who were entitled to congregate with other prisoners, and entitled to commissary privileges? What is it?

MR. McCLELLAN: That may well be. I can't read the mind of people who proposed this provision. But I can tell you that we already have laws on the books to cover the treatment of detainees and to cover --

Q Yes, but the point is, the letter from Condi was saying, look, we're opposed to this because you are going beyond existing law in some way that we think is inappropriate. And what I'm asking you is, what were they doing that goes beyond all of the laws you've talked about that say, you cannot torture people? What was Congress trying to add to this that goes beyond those laws?

MR. McCLELLAN: Well, again, I think that you can talk to specific members about what they were trying to do. What we're trying to do is make sure that the policies of the United States are followed, and the policies of the United States are the same as the laws that are on the books.

Q Scott, your guy wrote the letter. Why can't you just tell us what it is that Josh Bolton saw in the legislation that went beyond where you --

MR. McCLELLAN: Suzanne. I'll come back to you if I can, John. Suzanne.

Q The point you're making simply is that it's redundant? That's the only argument you're making --

MR. McCLELLAN: It's not necessary because of the reason I stated. You have the Convention Against Torture; you have the criminal statutes on the books in the United States; and you have the provision in the Defense Authorization Act to address these issues. Now, we have an obligation to do everything we can to protect the American people and we do so in a way that is consistent with our laws and our treaty obligations. That's the policy of the President of the United States. And he's made very clear what his view is when it comes to torture. We do not condone the use of torture, period; and he would never authorize torture. And he's made that very clear publicly.

Posted 1:09 AM by Marty Lederman [link] (21) comments

Administration Confirms Its View that CIA May Engage in "Cruel, Inhuman and Degrading" Treatment

Marty Lederman

In an important story in tomorrow's New York Times, Doug Jehl and David Johnston report on how the Administration successfully opposed enactment of a provision in recent legislation that would have specifically prohibited the CIA from engaging in "cruel, inhuman and degrading" treatment of detainees. A letter from National Security Adviser Condoleezza Rice to members of Congress "expressed opposition to the measure on the grounds that it 'provides legal protections to foreign prisoners to which they are not now entitled under applicable law and policy.'"

This confirms the theory I wrote about in a four-part post here a few days ago: that the Administration has concluded that the CIA is not presently prohibited from engaging in cruel, inhuman and degrading conduct when it interrogates suspected Al Qaeda operatives outside U.S. jurisdiction--even though such conduct would be unconstitutional if conducted by the CIA within the U.S., and would be prohibited by law, treaty and executive directive if conducted by the Armed Forces even outside the U.S.

The article further confirms my understanding that the new OLC Memo on torture, although a dramatic improvement over the 2002 OLC Memo, nevertheless does not affect DOJ's previous advice that the CIA may engage in particular highly coercive techniques that fall just short of statutory "torture." The article reports "[c]urrent and former government officials" as saying that "specific interrogation methods were addressed in a series of still-secret documents, including an August 2002 one by the Justice Department that authorized the C.I.A.'s use of some 20 interrogation practices. The legal opinion was sent to the C.I.A. via the National Security Council at the White House. Among the procedures approved by the document was waterboarding, in which a subject is made to believe he might be drowned. The document was intended to guide the C.I.A. in its interrogation of Mr. Zubaydah and a handful of other high-level detainees. Instead, it led to a series of exchanges between the Justice Department and the intelligence agency as they debated exact procedures to be employed against individual detainees."

NOTE: The NYT story identifies me as a former DOJ attorney who "believe[s]" that the administraion had "always wanted to leave a loophole where the C.I.A. could engage in actions just up to the line of torture." Just to be clear: That conclusion is simply what I deduced from documents that have been made public after I left the Department (as reflected in the series of posts below). I did not learn of anything about this issue while at DOJ, and nothing I have written or said reflects any confidential information to which I was privy at OLC.

UPDATE: A couple of readers have questioned whether most Americans will perceive this development as such a bad thing, or whether they might instead respond: "The Administration is waterboarding Khalid Shaikh Mohammed? Damn, I sure hope so."

Sadly, I concede that many, perhaps most, readers of the Times story might have such a response--at least at a gut level. I think that it would be extremely unfortunate for us to act in accord with that impulse, and that the costs of going down that road are far greater than the benefits. But although I have a strong moral intuition about such things, I'm hardly an authority on the empirical questions of consequences. I'll leave it to others with much more experience and authority than I to speak to those questions much more effectively and eloquently than I could hope to do. I'll simply make four brief points in response:

1. The conduct we're talking about here is conduct that would not only be unlawful if committed by the Armed Forces, but that would also presumptively be unconstitutional if even the CIA engaged in it here in the U.S. (The constitutional test -- conduct that "shocks the conscience" and thus violates the Due Process Clause -- is the express substantive standard that the "cruel, inhuman and degrading" prohibition would instantiate. The Administration would not need to prevent enactment of the prohibition if it did not wish to preserve the authority to engage in conduct that meets this standard.) Is there any really persuasive argument that the CIA should be permitted to avoid such constitutional restrictions merely by the fortuity that it flies these detainees to an undisclosed foreign location rather than to a detention facility in South Carolina?

2. The legal theory that supports the waterboarding of KSM is not limited to top Al Qaeda leaders. It would permit the inhumane treatment outside U.S. jurisdiction of any detainee not protected by the Geneva Conventions -- a category that is, in this Administration's view, remarkably broad, encompassing virtually anyone who is suspected of aiding Al Qaeda in any way. The limitation to "top" Al Qaeda leaders, if it exists, is a function of policy, not of legal constraint (unless I'm missing something).

3. It's somewhat unrealistic to hope that the policy will not as a practical matter have ramifications far beyond the class of persons for whom the policy was designed. The "migration" of such techniques, and their ilk, to interrogations by the Armed Forces, and to detainees who are protected by Geneva or who have much more questionable intelligence value, is very difficult to prevent, particularly where the CIA's harsh methods become widely known and emulated within the broader community of interrogators who are under intense pressure to obtain valuable intelligence (whether about future terror or simply about Iraqi insurgency plans). In addition to the story told in the Fay Report, Andrew Sullivan is especially worth reading on this very serious problem.

4. This is, to my mind, the most important point: Even if we do as a Nation ultimately decide that inhumane treatment should be authorized for a certain category of detainees, perhaps the Times story will at the very least help to ensure that that question is subject to public deliberation, democratic decisionmaking, and the moral and practical (including international) ramifications that such a serious decision ought to entail. This Administration has talked a great deal about how it is committed to treating detainees "humanely," but all the while it has fought tooth and nail to be able to treat detainees inhumanely, i.e., in a manner that would be unconstitutional if done in the U.S. Perhaps it is absolutely right to have worked to preserve such a CIA "loophole." I don't think so; but I recognize that I may be in the minority. I simply hope that, if this--waterboarding--is being done in our name, at least we can be more forthright about what we, and our legal and moral commitments, have become.

UPDATE II: Not so fast. It appears that perhaps I was being far too pessimistic about the willingness of Americans to condemn the CIA's legally approved program of "torture-light" for suspected Al Qaeda operatives. (That is to say, I've undoubtedly been spending too much time in the blogosphere.)

According to this very recent USA Today poll (taken last week), 59% of respondents said that they would not be willing to have the U.S. government torture known terrorists even if those known terrorists “know details about future terrorist attacks in the U.S.” and the government thought such torture was “necessary to combat terrorism”! And when asked whether “you think it is right or wrong for the U.S. government to use [particular techniques] on prisoners suspected of having information about possible terrorist attacks against the United States,” respondents answered as follows:

-- Forcing prisoners to remain naked and chained in uncomfortable positions in cold rooms for several hours – WRONG, 79% to 18%

-- Having female interrogators make physical contact with Muslim men during religious observances that prohibit such contact – WRONG, 85% to 12%

-- Threatening to transfer prisoners to a country known for using torture – WRONG, 62% to 35%

-- Threatening prisoners with dogs – WRONG, 69% to 29%

-- And as for Waterboarding (“Strapping prisoners on boards and forcing their heads underwater until they think they are drowning”) – WRONG 82% to 18%

-- On “[d]epriving prisoners of sleep for several days,” 49% of respondents answered RIGHT; 48% WRONG

Posted 11:45 PM by Marty Lederman [link] (18) comments

A Must-Read Review by Andrew Sullivan on Torture

Marty Lederman

This new, extended book review by Andrew Sullivan in the New York Times is, along with some Mark Danner essays in the New York Review of Books, among the most moving and indispensible things yet written about the torture scandal. Sullivan closes with the following sobering passage:

[I]n a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ''evil'' might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes. . . . Advocates of the war, especially those allied with the administration, kept relatively quiet, or attempted to belittle what had gone on, or made facile arguments that such things always occur in wartime. But it seems to me that those of us who are most committed to the Iraq intervention should be the most vociferous in highlighting these excrescences. . . . I'm not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it's worth a thorough reassessment of rhetoric and war methods. Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ''heroic'' protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.

The only important piece missing from Sullivan's review is the central role of the CIA in the current legally sanctioned regime of highly coercive interrogation--interrogation that borders on torture, even if it does not quite satisfy the extremely narrow definition of torture contained in the U.S. criminal torture statute. I discuss that role further in a series of posts beginning here; and it is at the heart of a front-page story in tomorrow's Times that I'll post about presently.

Posted 11:30 PM by Marty Lederman [link] (16) comments

Heather MacDonald's Dubious Counter-"Narrative" on Torture

Marty Lederman

Over in Slate, Mickey Kaus refers to a new article in the City Journal by Heather MacDonald as the “best defense of the administration’s record on torture” that he’s yet read. MacDonald argues that the atrocities at Abu Ghraib and other abuses in U.S. detention facilities in Iraq and Afghanistan (including, apparently, murders) are not the result of Administration interrogation policies; that the Office of Legal Counsel’s legal justifications for extremely coercive interrogation techniques bordering on torture have had no effect on the Pentagon’s interrogation policies; and that the military’s current interrogation practices are, in fact, far too timid and cautious—the result of a hidebound legalist culture within the government and of an inaccurate “torture narrative” promoted by “self-professed guardians of humanitarianism” (e.g., the Red Cross and Amnesty International) who “need to come back to earth.”

MacDonald’s account is, I think, suspiciously evasive on the facts and the law, as I’ll explain below.

At the outset, however, it’s important to note that MacDonald is absolutely correct in one very important respect—involving the role of the CIA. In a series of posts that I published here a few days ago (see below), I attempted to demonstrate that the infamous August 2002 OLC Memo on torture was not originally intended as a guide to interrogations conducted by the U.S. Armed Forces in Iraq, Afghanistan, or Guantanamo. The 2002 memo deals exclusively with the federal torture statute—but the Armed Forces are bound by legal rules much more restrictive than those imposed by the torture statute, including the Uniform Code of Military Justice, the President’s directive that all detainees be treated humanely, and article 16 of the Convention Against Torture, which in effect prohibits treatment that would “shock the conscience,” and thus violate the Due Process Clause, if it had occurred within the U.S. The purpose of the 2002 OLC Torture memo, I explained, was instead to identify the legal limits on interrogation that the CIA may use against suspected Al Qaeda operatives at locations outside U.S. jurisdiction. The Administration apparently has concluded (perhaps not without reason) that numerous other statutory, executive and treaty-based restrictions on coercive interrogation and inhumane treatment do not apply to such CIA interrogations outside U.S. jurisdiction—so that if a technique does not amount to “torture” under the very narrow statutory definition, it is not off-limits to the Agency. In other words, even if a particular inhumane or cruel technique would be unlawful if performed by the military, or would be unconstitutional if performed by the CIA within the U.S., OLC apparently has concluded that the CIA nevertheless may use that technique upon suspected Al Qaeda detainees outside U.S. jurisdiction as long as it does not amount to statutory “torture.”

The 2002 OLC Opinion bent over backward to construe the federal torture statute as narrowly as possible. A recent, superseding OLC memo on the torture statute, released at the end of December 2004, improves on the 2002 memo in numerous ways, and even goes so far as to repudiate many of the central, most extreme conclusions of that earlier memo. Notably, however, the new memo reassures the CIA, in a footnote, that despite all these changes and repudiations, OLC has “reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." That is to say, the new OLC Opinion, even with its much more reasonable views of the torture statute, appears not to affect in any significant way the techniques the CIA has already been specifically authorized to use. And the Administration has concealed from the public (and perhaps also from the Congress) the extreme, sometimes inhumane forms of interrogation—just short of the strict statutory standard of “torture”—that the CIA presumably is authorized to use upon detainees overseas.

In his confirmation hearing last week, Judge Gonzales claimed that he has no “specific recollection” whether it was the CIA that asked for OLC’s legal advice on the meaning of the torture statute. That claim is increasingly implausible. MacDonald’s article and another new piece in Time Magazine confirm what others have been reporting since last summer—namely, that the White House Counsel request for OLC advice was prompted by a CIA request concerning “how far interrogators could go” against high-value Al Qaeda detainees, such as Abu Zubaydah. (I’ve tried to demonstrate in my earlier posts that this is the only way to explain the OLC memos—that there would have been no reason for OLC to be answering the narrow questions concerning the torture statute if the request had come from, e.g., the Pentagon, which was bound by much stricter requirements.)

As the Time Magazine article notes, however, as long as the Administration is not more forthcoming, “it remains impossible to know what rules the CIA is following when it conducts interrogations in ‘undisclosed locations’ outside the U.S.” What we do know is that the Administration appears to have strenuously, and successfully, resisted all efforts—including two recent bills that the Senate passed unanimously—to require the CIA to refrain from cruel, inhuman and degrading treatment of detainees. And, according to “a former Justice Department official” cited in MacDonald’s article, the CIA apparently has been authorized to use techniques as extreme as water-boarding, i.e., submerging a detainee in water to induce the sensation of drowning. Beyond that, as MacDonald notes, “[t]he CIA’s behavior remains a black box.”

In her article, MacDonald agrees that the 2002 OLC Memo was “hair-raising,” and “understandably caused widespread alarm.” She argues, however, that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. MacDonald further argues that, in contrast to the CIA, Pentagon officials have not come close to violating the law; that the military’s techniques have been “light years from real torture”; that the interrogation policies in Cuba and Afghanistan are “irrelevant” to what happened in Abu Ghraib; and that, in fact, the Armed Forces have been unduly hamstrung by a culture of legalism that is an unfortunate byproduct of “fanatically cautious” Pentagon lawyers steeped in the outmoded ways of the Geneva Conventions.

This version of the story appears to be selective, at best.

As noted above, I agree with MacDonald that the 2002 OLC Memo likely was not intended to affect interrogation policies in the military. But she is wrong to insinuate that the Pentagon was unaware of the OLC Memo, and to argue that the Memo had no effect on Pentagon policies and practices. Although I assume the Memo was originally intended for use by the CIA, the White House soon forwarded it to the Department of Defense, where huge portions of it were incorporated virtually verbatim in the DoD Working Group Report on Guantanamo interrogation techniques in early 2003 (even though the statute discussed in the OLC Memo did not even apply at Guantanamo during the period in question). Most notably, the Pentagon adopted wholesale the most indefensible and most dangerous portions of the OLC Memo—where OLC concocted unlikely criminal defenses of “necessity,” “defense of nation,” and “presidential authority,” and where OLC argued that criminal laws restricting methods of interrogation are unconstitutional to the extent they impinge upon the President’s decisions of “what methods to use to best prevail against the enemy.”

Armed with these OLC assurances of virtually no legal exposure, the DoD Working Group itself concluded that these techniques were among those that are lawful under the restrictive laws governing military interrogations: placing a hood over detainees during questioning; 20-hour interrogations; four days of sleep deprivation; forced nudity to create a “feeling of helplessness and dependence”; increasing “anxiety” through the use of dogs; quick, glancing slaps to the face or stomach; and the threat of transfer to another nation that might subject the detainee to torture or death.

In December 2002, Defense Secretary Rumsfeld likewise approved a whole series of new interrogation techniques that are difficult to explain in terms of the law governing the military. Perhaps because such techniques were so obviously close to or over the legal line, Rumsfeld rescinded that approval after only six weeks. MacDonald is correct that in April 2003, Secretary Rumsfeld declined to approve of some of the more coercive techniques. What’s not as certain is her further argument that the non-conventional “stress” techniques Rumsfeld did finally approve were “innocuous interventions.” Those techniques included “environmental manipulation” (such as “adjusting” the temperature or introducing an “unpleasant smell” in the interrogation area); convincing a detainee that individuals from a country other than the United States are interrogating him (including from a nation that the detainee knows is more likely to engage in harsh treatment); and isolating the detainee from other detainees for up to 30 days.

Presumably each of these techniques is, in Rumsfeld’s view, “humane,” does not shock the conscience, and does not violate the UCMJ (including its prohibitions on cruelty, oppression, maltreatment, assaults and threats).

Perhaps his judgments on those questions are legally sound as an abstract matter—that is to say, perhaps these techniques could be applied in conformity with all applicable laws that apply to the military. But when it comes to how Rumsfeld’s directives were (apparently) implemented, it becomes clear that those directives were hardly “innocuous.” MacDonald asserts that the new techniques Rumsfeld approved were used on only one GTMO detainee. The Schlesinger Report states that the new, more coercive Rumsfeld techniques were used upon two detainees at GTMO. If these accounts are accurate, then perhaps the attempt to trace harsh techniques to Pentagon-approved policies really is a tempest in a teapot (unlike what is happening at the CIA).
But MacDonald’s minimalist account is not consistent with other recent reporting. According to this recent New York Times story, for instance, http://www.nytimes.com/2005/01/01/national/01gitmo.html?oref=login, the Rumsfeld-approved techniques apparently transmogrified in practice into the following at GTMO:

-- prolonged sleep deprivation;

-- shackling prisoners in uncomfortable positions for many hours (to the point where one detainee who had been shackled overnight in a hot cell soiled himself and pulled out tufts of hair in misery);

-- tormenting prisoners by chaining them to a low chair for hours with bright flashing lights in their eyes and audio tapes of Lil' Kim, Rage Against the Machine and Eminem played loudly next to their ears (or in some cases a tape mix of babies crying and the television commercial for Meow Mix in which the jingle consists of repetition of the word "meow");

-- and, in at least one case, tranquilizing a detainee, placing him in sensory deprivation garb with blackened goggles, hustling him aboard a plane that was supposedly taking him to the Middle East, and bringing him (unknowingly) back to GITMO, where he was put in an isolation cell and there subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives.

Are these techniques “light years from real torture,” as MacDonald suggests? More to the point, are they lawful? To the extent military officers approved or implemented these forms of coercive interrogation, it is difficult to see how they avoided violating legal restrictions such as those in the UCMJ, article 16 of the CAT, and the President’s directive that detainees be treated “humanely.” Notably, MacDonald herself does not explain how these techniques—or even those approved by Rumsfeld—might be consistent with the law. Indeed, she fails even to mention the UCMJ, even though, as Senator Graham indicated last week, it is the longstanding set of legal norms that establishes the most comprehensive and demanding set of restrictions on the conduct of military personnel engaged in interrogation. To my knowledge, DoD has never hinted that the UCMJ is inapplicable at Guantanamo, and has not asked Congress to loosen UCMJ standards so that the military may apply previously unlawful forms of coercion to Al Qaeda detainees. Is MacDonald asking for a legislative authorization that even the Administration has been unwilling to propose? There's no way to know, because her piece blithely disregards any discussion of what the current law might actually be.

Finally, there’s MacDonald’s eye-opening suggestion that the interrogation policy debates at GTMO and in Afghanistan are “irrelevant” to what occurred at Abu Ghraib, and that Abu Ghraib had little or nothing to do with the Administration’s interrogation policies (or with interrogation at all). The best that can be said for this argument is that perhaps MacDonald simply has not read the Schlesinger, Jones and Fay Reports, because chapter and verse of those reports undermine her account.

The reports explain in detail that the interrogators at Guantanamo, and the conflicting and confusing set of directives from the Pentagon for GTMO, “circulated” freely to Afghanistan and then to Iraq (Schlesinger 9). Lieutenant General Sanchez, the commander of the Combined Joint Task Force in Iraq, approved techniques going beyond those approved for GTMO, “using reasoning” from the President’s February 7, 2002 directive on unlawful combatants (id. at 10). The “existence of confusing and inconsistent interrogation technique policies,” including a “proliferation of guidance and information from other theatres of operation,” and the fact that personnel involved in interrogation in GTMO and Afghanistan “were called upon to establish and conduct interrogation operations in Abu Ghraib,” all contributed “to the belief that additional interrogation techniques were condoned in order to gain intelligence” (Jones 15-16; Fay 8, 10, 22). “The lines of authority and the prior legal opinions blurred” (Fay 10), and “DoD’s development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators at Abu Ghraib” (Fay Finding No. 7).

Most importantly for present purposes, the Fay Report demonstrates that the extreme techniques that have been approved for the CIA, based upon OLC legal advice, have had an inevitable deleterious impact on the interrogation methods employed by the military (including at Abu Ghraib), even though the military is in theory subject to much more restrictive legal rules, such as the UCMJ. “CIA detention and interrogation practices [in Iraq] led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib” (pp. 52-53). The CIA practices and techniques led to a “perception” that such techniques and practices “were suitable and authorized for DoD operations” (pp. 118-119).

MacDonald would have us believe that the now-familiar story of the inevitable “migration” of extreme practices from the CIA and from GTMO to our troops in Asia is a myth. Notably, however, she provides no evidence to contradict the accounts in the Schlesinger, Jones and Fay Reports, which demonstrate that such migration was all-too-real. "[T]he events at Abu Ghraib cannot be understood in a vacuum" (Jones/Fay Executive Summary).

Finally, it is worth noting MacDonald’s principal prescription, which is that we ought to eliminate transparency in the law of interrogation: If U.S.-approved techniques are publicly known, she reasons, “interrogators have lost the ability to create the uncertainty vital to getting terrorist information.” The problem, writes MacDonald, is that we have reassured the world of “our limits,” whereas interrogations would be much more effective if detainees thought we were a lawless state, willing to do just about anything to get information (sort of like Jack Bauer on “24”)-- or, at the very least, if detainees had no idea what our interrogators' limits are. This is very much of a piece with the Government’s chilling (but refreshingly candid) argument in Padilla that it was necessary to deny the defendant access to counsel in order to convince Padilla that he was completely outside the protection of the judicial system—that no process was due and that all hope was lost—in order to establish what the Government euphemistically called the “delicate” relationship of “trust” and “dependency” between detainee and interrogator.

As an empirical matter, of course, MacDonald may well be correct: If someone is being interrogated by a nation with secret laws, by a nation that refuses to assure the world that it will abide by its treaty obligations, by a nation with a system of interrogation rules and practices wholly outside the purview of democratic deliberation, public accountability and judicial review, no doubt such an interrogation would be more effective than one that is bound by acknowledged legal limits. Which just goes to show that what MacDonald is really complaining about is that we must, even in interrogation, adhere to the rule of law—an understandable concern in an essay that does not even bother to discuss what the law of interrogation actually is.

Posted 1:47 PM by Marty Lederman [link] (57) comments