Airtight Logic

Marty Lederman

Administration Press Secretary Tony Snow today was quoted as saying that the new DoD compliance with Common Article 3 is "not really a reversal of policy," and insisted that all U.S. detainees have been treated humanely -- which is apparently all that Common Article 3 requires. As I explained below, now that the Administration has lost its four-plus-years' fight to deny the applicability of Common article 3, it's new tactic appears to be to insist that its approved detainee interrogation pracitces have -- what do you know? -- complied with Common Article 3!

As best I can tell just now -- it's a moving target, of course -- this might be the Administration's "logic":

1. “Humane treatment” is the “overarching feature” of Common Article 3 (so says the England Memo), in the sense that the Article identifies that as the goal of its specific prohibitions.

2. In February 2002, the President directed the Armed Forces [but not the CIA] to treat all detainees “humanely.”

3. We follow our President’s orders.

4. Thus, we have treated all detainees “humanely.”

5. We have forced a detainee to wear a bra and have a thong placed on his head during interrogation; tied him to a leash, led him around the room and forced him to perform a series of dog tricks; forced him to dance with a male interrogator; stripped him naked; placed Korans on a television "as a control measure"; and poured water on the detainee during interrogation 17 times.

6. Because we comply with the President’s directive to treat all detainees humanely, the techniques in paragraph 5 are humane.

7. Moreover, when in November 2002 General Counsel Haynes concluded that certain techniques “may be legally available,” he necessarily meant that such techniques “may be humane” (because he wouldn’t authorize violation of a presidential directive).

8. The techniques that GC Haynes concluded “may be legally available” include forced nudity, forced grooming, "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress," 20-hour interrogations, stress positions, the use of mild physical contact such as grabbing, poking and light pushing, waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

9. Ergo, all those techniques are “humane.”

10. The April 2003 DOD Working Group Report exhaustively canvassed the law of interrogations, including the President’s directive that detainees be treated “humanely.” That Report concluded that the following techniques were among those that are legally available: Hooding; “threaten to transfer to a third country that subject is likely to fear would likely subject him to torture or death”; 20-hour interrogations; “forced grooming”; sleep deprivation – not to exceed four days in succession; face or stomach slap; removal of clothing; and “Increasing Anxiety by Use of Aversions,” such as dogs.

11. The techniques approved by the Working Group therefore must be “humane.”

12. Ergo, all of the techniques employed on Al-Qahtani, identified by GC Haynes, and approved in the Working Group Report, are consistent with the “overriding feature” of Common Article 3, namely, ensuring humane treatment.

13. To be sure, many of these techniques would appear, on first glance, to involve violence, cruelty, humiliating or degrading treatment, or other outrages upon personal dignity. (Indeed, the Schmidt Report found that the al-Qahtani interrogation did involve degrading and humiliating treatment.) And, on its face, CA3 would appear to prohibit such techniques, because it nominally prohibits “violence to life and person, in particular . . . cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” “at any time and in any place whatsoever.”

14. [This, along with 17, below, is my favorite.] However, the specific prohibitions in CA3 are prescribed in order “to this end”: namely, that detainees shall be “treated humanely.” Thus, those prohibitions must be construed consistent with what is “humane.”

15. Paragraphs 2-12 demonstrate that the DoD uses only “humane” approved techniques.

16. Thus, those techniques satisfy the objective -- the “overriding feature” -- of CA3.

17. Ergo, those techniques must be construed not to constitute “violence to life and person, in particular . . . cruel treatment and torture,” nor “outrages upon personal dignity, in particular humiliating and degrading treatment.”

18. Which means that all DoD approved techniques have been consistent with CA3.

Ta-da!
Posted 5:15 PM by Marty Lederman [link]