an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Does the Army Field Manual Authorize "Creative" Humiliation of Detainees?
One of the principal provisions of the McCain Amendment, now the law of the land, states that "No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation." On its face, this would appear to be a fairly significant restriction, since the Army Field Manual, which for many decades prior to February 2002 governed interrogations conducted by the U.S. Armed Forces, purports to be consistent with the Geneva Conventions. As we now know, however, the McCain Amendment might not be very effective, because the current Pentagon has managed to construe the Field Manual to authorize criminal techniques that everyone had for decades understood to be prohibited.
Last July, I wrote here about the disturbing findings of the Pentagon's Schmidt Report, which concluded that the techniques employed on Mohammed al-Qahtani--including, for example, having female interrogators physically seduce and taunt a Muslim detainee; forcing him to wear a bra and placing a thong on his head during interrogation; tying him to a leash, leading him around the room and forcing him to perform a series of dog tricks; stripping him naked; and pouring water on his head during interrogation 17 times—although degrading and humiliating, were not only "humane," but also are authorized by the Army Field Manual.
Today's Washington Post reports that the Pentagon is adhering to its Orwellian readings of the Field Manual: The techniques in question, the Pentagon insists, are "creative and aggressive," and "degrading and humiliating" -- but nevertheless "did not violate any U.S. law or policy" (including, presumably, the criminal statutes that prohibit members of the armed forces from engaging in assault (10 U.S.C. 928) and cruelty and maltreatment (10 U.S.C. 893)). Not surprisingly, however, the highest-level JAG lawyers of the Army, Navy and Marine Corps once again disagree with the Pentagon's understanding: They informed Congress that these techniques do violate the Field Manual prescriptions.
Unfortunately, it's not the JAGs who will determine the meaning of the Field Manual going forward.
The Post article quotes Senator McCain as saying that "[w]hen it comes to interrogation standards, we must ensure that our men and women in uniform do not receive unclear or misleading guidance," and that the head of the U.S. Southern Command will have to "clarify" his opinion that the techniques did not violate any U.S. law or policy. OK -- but the JAG and DoD statements in question were all submitted to the Senate Armed Services Committee last summer, after the July hearing, and yet today's Post story is the first the public is hearing of them. What's up with that? Why hasn't the Armed Services Committee released these documents until now? And why hasn't the Committee insisted that the Penatagon "clarify" its position? (If anyone has copies of the statements in question, please post them -- thanks.)
P.S. Speaking of the Army Field Manual and the Geneva Conventions, Avi Cover of Human Rights First is blogging the court-martial of Abu Ghraib dog handler Sgt. Michael Smith now taking place in Maryland. The Pentagon has repeatedly asserted that the Geneva Conventions apply to the treatment of detainees in Iraq. Perhaps, then, someone will ask the witnesses, including Col. Thomas Pappas, how they possibly could have determined that the use of dogs to "set the atmosphere" for obtaining information is consistent with the Geneva Conventions, the Army Field Manual, and the Uniform Code of Military Justice. Posted
by Marty Lederman [link]