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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
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.
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.
Prof. Lederman seems to have it exactly right. The unfortunate part is that it's not a satirical feature in the Georgetown Law Lampoon*, but a perfectly plausible analysis of how this administration (and its piece-of-sh*t, traitor-to-their-profession lawyers) is wont to argue.
Oh, did that parenthetical slip out? My bad. _____________ * Well, there oughta be such a periodical.
Just as the OLC tried to redefine "torture" so that it didn't include certain practices, the administration is now redefining "humanely" to include what most would consider to be patently inhumane treatment. No surprise from the administration that called its clearcutting of forests proposal the "Healthy Forests Initiative."
I think this analysis of the logic is spot on. You can see the same sort of attempt to reduce cognitive dissonance in the following email from an FBI observer at Guantanamo:
"This instruction begs the question of what constitutes ‘abuse.’ We assume this does not include lawful interrogation techniques authorized by Executive Order. We are aware that prior to a revision in policy last week, an Executive Order signed by President Bush authorized the following techniques among others[:] sleep ‘management,’ use of MWDs (military working dogs), ‘stress positions’ such as half squats, ‘environmental manipulation’ such as the use of loud music, sensory deprivation through the use of hoods, etc. We assume the OGC [Office of General Counsel] instruction does not include the reporting of these authorized interrogation techniques, and that the use of these techniques does not constitute ‘abuse’ [...] there may be a problem if OGC does not clearly define ‘abuse’ and if OGC does not draw a clear line between conduct that is clearly abusive and conduct that, while seemingly harsh, is permissible under applicable Executive Orders and other laws."
Ie, if the President authorized it, it can't be "abuse", so everything's fine.
[Email from REDACTED to M. C. Briese, Gary Bald, T. J. Harrington, Frankie Battle and other redacted parties Re Request for Guidance regarding OGC EC dated 5/19/04, signed [REDACTED], “On scene Commander—Baghdad, at ACLU]
A French law professor use to say at the end of his last class, "beware of logic".
The fundamental flaw with that logic is that the four JAG's have just said on Thursday that some of the techniques authorized and used violated Common Article 3.
All agreed also that violations of Common Article 3 are War Crimes under the War Crimes Act.
So those folks Marty talks about can argue airtight logic but that assumes that symbols are the only realities. They are not and, maybe in a moment of candor, the JAG's have pointed out that war crimes were countenanced and did occur.
That is what the SOB's are in denial about with all their rationalizations - or denial about the fact that they have become their worst enemy.