The Bush Administration Draft Hamdan Response Bill

Marty Lederman

Here's one version of the draft legislation that the Bush Administration is considering in the wake of Hamdan. I believe it's the same version that the New York Times and Washington Post have reported on in recent days. (NOTE: FWIW, I did not receive it from anyone in the Administration or those two newspapers. My sense is that it's been floating all around town today.)

I think it's fair to assume that it's a work in progress. There's also reason to believe that this is not the entirety of the proposals -- for one thing, Common Article 3 is discussed only in the Findings, not in any operative provisions. But it likely contains most of the draft proposals on military commissions -- and even, for the first time, statutory detention authority, defined to cover all "enemy belligerents."

Others will undoubtedly have more to say about the numerous proposals with respect to military commissions, some of which seem very troubling. [UPDATE: Invaluable initial thoughts from Dave Glazier over at Intel Dump.] But I'd like to focus on the definitions of who can be detained and tried, and on Common Article 3, because those issues are probably more important, yet are receiving far less attention. [UPDATE: One general matter: Section 104(a) appears to authorize the President to use his "constitutional authority" to establish other commissions, independent of those prescribed in the Act, "should circumstances so require." That seems like a huge, gaping loophole that presumably Congress will want to address if its intent is to provide a framework under which the President must act.]

As for who can be detained and tried in military court:

On first glance, the proposal does not appear to be limited to aliens (the word "alien" was repeatedly deleted), nor even to Al Qaeda and other groups and individuals covered by the September 18, 2001 AUMF -- it covers any and all "enemy combatants" against the U.S. and its allies in any conflict, anywhere and at any time. And "unlawful enemy combatant" is defined to include -- but not be limited to -- an individual or is or was "part of or supporting" Taliban or Al Qaeda forces, or associated forces engaged in hostilities against the U.S. or its coalition partners. If I'm reading this right, if you're a citizen alleged to have "supported" a hostile group "associated" with Al Qaeda, you can be (i) detained until the "cessation of hostilities" (with whom? doesn't say); and (ii) tried before a military commission.

As for Common Article 3, and interrogation techniques:

This draft does not contain any of the operative provisions relating to Common Article 3, so we can't yet tell what the Administration's proposals will be. But the draft's Section 102(9) contains two "findings" that may give us some clue of the direction in which they're heading:

-- The first is that the standards for treating detainees under the McCain Amendment "fully satisfy any obligations of the United States regarding detainee treatment under common Article 3(1)." As I've explained (See Myth No. 6), that might be true if the McCain Amendment were construed to prohibit all of the "cruel treatment and torture" proscribed by Common Article 3. But there is a good chance that the Administration is not construing the McCain Amendment to prohibit the enhanced CIA techniques, e.g., Cold Cell, Long Time Standing, stress positions, sleep deprivation, and possibly waterboarding -- in which case the McCain standards would not, in fact, satisfy U.S. obligations under Common Article 3. [UPDATE: Jeffrey Smith's terrific article in the WaPo tomorrow confirms this strategy: "The aim, Justice Department lawyers say, is also to take advantage of U.S. legal precedents that limit sanctions to conduct that 'shocks the conscience.' This phrase allows some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say -- even though the Geneva prohibitions are absolute."]

Administration officials are already making noises that the "clarification" is necessary because of the so-called vagueness or ambiguity of Common Article 3, especially the prohibition on "humiliating" treatment. This is a red herring. The issue is the CIA, which is not so concerned with the ban on humiliation in section (a)(3) as it is with the ban on "cruel treatment and torture" in section (a)(1). Moreover, the substantive standard of the McCain Amendment (the "shocks the conscience" test) is actually much more uncertain, and vaguer, than the terms in Article 3(1)(a) itself, and arguably more subject to a case-by-case post hoc analysis rather than categorical limits. Don't take my word for it; listen to the Vice President: "The rule is whether or not it shocks the conscience. . . . Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose that's in the eye of the beholder."

Once you realize that the McCain Amendment is even vaguer and more indeterminate than Common Article 3, it becomes clear there's really no other reason for the Administration to seek to construe CA3 to be coterminous with McCain other than to circumvent the categorical prohibitions in CA3 section 1(a) on "cruel treatment and torture."

Accordingly, the thing to watch for, as the legislative process moves forward, is some specification -- in the statute itself or in the legislative history -- of what, exactly, the McCain Amendment prohibits.

-- The second finding is that "the Geneva Conventions are not a source of judicially enforceable individual rights." That language seems fairly sweeping. But as with the rest of this evolving debate, the devil will be in the details of the operative statutory language. It would be one thing to cut off possible causes of action by private parties directly under the Geneva Conventions. In and of itself, that would be very controversial. But it would be quite another thing entirely -- and much more alarming -- if the bill made it impossible for parties to invoke Geneva under any other cause of action, such as, e.g., a habeas petition (as in Hamdan itself), or the Alien Tort Statute or, for that matter, a criminal prosecution under the War Crimes Act.

The best news I've seen on a quick glance is that the bill purports to reflect an intent to comply with the laws of war, including the customary laws of armed conflict. See sections 102(5); 104(e). Thus, presumably the Act would have to be construed, where possible, consistently with the laws of war (something that would be the ordinary, Charming Betsy default rule, in any event). In other words, there's no obvious intent -- yet -- to enact any laws that would conflict with treaty obligations and other laws of armed conflict.
Posted 5:13 PM by Marty Lederman [link]