Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It? -- and a Short Riff on the Haynes Nomination

Marty Lederman

Breaking news: Pentagon General Counsel Jim Haynes has ordered senior defense officials and military officers to apply Common Article 3 of the Geneva Conventions to all detainees held in US military custody. The DOD memo can be found here.

Contrary to the Financial Times story linked above, it's not a "major policy shift" -- it is simply a directive to DoD officials to comply with a holding of the U.S. Supreme Court. (For all of its startling assertions of Executive power, the Bush Administration has rarely if ever suggested that it would not abide by final determinations of the Supreme Court. But see the President's oddly phrased signing statement that he will construe the McCain Amendment "consistent with the constitutional limitations on the judicial power.")

The DOD memo assumes that the Supreme Court decision is binding on the application of Common Article 3. It begins: "The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda." This is a correct, uncontrovertible statement of law. (The Financial Times article argues that the so-called "policy shift" renderd "moot" an alleged unresolved legal question: "In the wake of the Supreme Court decision, legal experts had disagreed about whether the ruling meant that Geneva protections should be given to only those detainees brought before the military commissions, or to all detainees held at Guantanamo Bay and other US military detention facilities around the world." Actually, that's not right: No serious "experts" would disagree that the Court's ruling compels some Geneva protections -- namely, the minimum, baseline protections of Common Article 3 -- for all detainees in our conflict with Al Qaeda. Nor does the DOD memo suggest otherwise.)

The devil, of course, will be in the details:

1. What about the CIA?

2. The memo does not state that the Administration agrees with the Supreme Court's interpretation of Article 3, and does not foreclose the possibility that the Administration will promote legislation that would undermine the Court's ruling. Will the Administration, for instance, propose any legislation amending the War Crimes Act, or authorizing conduct that Common Article 3 would forbid? Etc.

3. And a possible point of significant dispute and/or misdirection: The letter states, correctly, that "humane treatment" is the "overarching requirement" of Common Article 3. It juxtaposes this truism with a reminder that the President had already directed all U.S. Armed Forces to treat detainees "humanely." But what the Administration means by "humane," and what Common Article 3 means by "humane," are entirely different animals.

As discussed here, even under the President's directive of "humane treatment," DoD General Counsel Jim Haynes advised the SecDef that the following techniques "may be legally available":

-- 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."

Moreover, as I discussed here, the DoD Schmidt report concluded that concededly degrading and humiliating techniques did not violate the humaneness requirement! -- including forcing a detainee to wear a bra and have a thong placed on his head during interrogation; tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks; forcing him to dance with a male interrogator; stripping him maked; placing Korans on a television "as a control measure"; and pouring water on the detainee during interrogation—17 times.

If this is what the Administration thinks Common Article 3 allows, it is dreadfully wrong, and we're being sold a bill of goods. Common Article 3 provides, in no uncertain terms, that "[t]o th[e] end" of ensuring humane treatment, certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment."

In other words, many techniques that were not prohibited by the President's "humane treatment" directive (as a result of a very unnatural intepretation of the word "humane") are prohibited by Common Article 3, including all humiliating and degrading treatment, and other "outrages upon personal dignity." This is something that the Administration should be required to address directly, if its new directive is to be worth anything.

* * * *

As the Financial Times reports, DoD General Counsel Haynes, he who ordered the new DoD directive, has a hearing before the Senate Judiciary Committee this very afternoon on his nomination for a lifetime appointment to the U.S. Court of Appeals for the Fourth Circuit. Coincidence? Fortuitous timing? You be the judge.

In the category of "memoranda we'd like to see," how about this one?:

RE-ACTION MEMO

July 7, 2006

FOR: SECRETARY OF DEFENSE

FROM: William J. Haynes, II, General Counsel

SUBJECT: Counter-Resistance Techniques (Redux)


Dear Mr. Secretary:

You may recall that back in November 2002 I advised you that the following interrogation techniques all "may be legally available," notwithstanding the prohibitions in the Uniform Code of Military Justice against assaults, threats, cruelty and maltreatment:

-- 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."

Oops. Scratch that. Sorry for any confusion.

Sincerely,

Jim

In all seriousness, I should add the following: Haynes did not recommend that all these techniques be implemented. Indeed, his advice cut back on some of the techniques recommended by other DOD lawyers, and he advised the SecDef that "for policy reasons," a "blanket approval" of waterboarding and threats of death was "not warranted at th[at] time."

This point is stressed in a letter sent to the Senate Judiciary Committee today by Larry Thompson, Jim Comey, Jack Goldsmith and Pat Philbin, most or all of whom have been reported to be at great odds with the Vice President's Office and other hard-liners in the Administration on issues of Executive power. I worked with Pat at OLC, and I know Jack well. I have absolutely no reason to doubt that everything they write in this letter is true (including the fact that Haynes had little choice but to accept John Yoo's view of the law in 2003, especially if Yoo was being backed by the VP's Office and the White House -- the letter accurately describes OLC's role in the Administration, except that it does not note that OLC's legal opinions can be overruled by the AG and the President).

Even if all the letter says is true about Hyanes's character and his conduct -- and again, I assume it is -- I believe there is still reason to be concerned about his role in the torture scandal, for at least two reasons:

First, in that November 2002 memo to the SecDef, Haynes did conclude that all those techniques "may be legally available," which strikes me as shockingly wrong legal advice, in light of (at the very least) the clear prohibitions in the UCMJ (discussed in the Beaver memo that was attached to Haynes's memo) and the President's "humane treatment" directive.

Second, there is the question of Haynes's alleged role in finalizing the April 2003 DoD Working Group Report, and seeing to it that General Geoffrey Miller was briefed on that Report before heading off to Iraq -- see my posts here and here and, especially, Jane Mayer's article. Thompson, et al., stress that Haynes helped the SecDef narrow the "approved" techniques to 24, in his April 16, 2003 memo. But if Mayer's account is accurate, that 4/16/03 memo was a whitewash, and it was the Working Group Report (and the 3/03 John Yoo memo that inspired it) that became the basis for DoD policy in Iraq and elsewhere, until Jack Goldsmith himself disclaimed the analysis in those memos in December 2003.

Obviously, neither I nor the Senate knows all the details of these incidents -- and perhaps the published reports are inaccurate. But the incidents certainly raise questions that might be of interest to the Committee. (And, as I've said many times before, there's no question that the 3/03 Yoo memo should be publicly disclosed; there's no justification for keeping this key part of the historical record secret, especially when the recipient of the memo -- the person who acted on it -- has been nominated to the federal bench.)
Posted 6:17 AM by Marty Lederman [link]