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
Well, as I suggested, the Administration's noises about how, in the wake of Hamdan, it was finally going to comply with Common Article 3 of the Geneva Conventions, are not quite what they were cracked up to be in the eager, early press releases.
Today we discover that "[a] day after saying that terror suspects had a right to protections under the Geneva Conventions, the Bush administration said Wednesday that it wanted Congress to pass legislation that would limit the rights granted to detainees. The earlier statement had been widely interpreted as a retreat, but testimony to Congress by administration lawyers on Wednesday made clear that the picture was more complicated."
Ah, yes. "The picture is more complicated." Here's the "complication": The Administration is asking Congress for statutory authorization for the United States to violate Common Article 3. That's what Lindsey Graham means when he says "that Common Article Three must be 'reined in.'"
Graham's statements are very revealing -- indeed, he reveals current (theoretically classified) CIA methods that are said to be compliant with current law other than Common Article 3!:
"He said it would make death penalty crimes of current interrogation techniques, including keeping detainees awake and forcing them to sit in extremely hot or cold cells — methods he referred to as 'things that are not torture but are aggressive.'"
(NOTE: Senator Graham is slightly mistaken about one thing here: Under the War Crimes Act, violations of Common Article 3 are subject to the death penalty only if the violation causes the victim's death. Occasionally the CIA's use of hypothermia does result in death -- see, for example, this incident -- but not invariably.)
What are these techniques, exactly? Well, here is how one report describes the CIA techniques of "Long Time Standing" and "Cold Cell":
Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
So, apparently, the idea is to enact a statute that would allow such techniques, at least in certain circumstances. But how could Congress do that?
Graham indicated to the New York Times -- as did Administration officials -- that Congress could "limit" Common Article 3 "in a way that resembled the language of the [McCain Amendment]." Of course, as Graham concedes, this really wouldn't so much be "limiting" Common Article Three as gutting it, because, according to Graham himself, the restrictions of Common Article 3 go "well beyond the McCain standard." (The Washington Post reports that the White House and Senator McCain are crafting a bill that would track the McCain Amendment and that "makes some changes to Common Article 3," such as dropping the phrase "outrages upon personal dignity.")
How can that be? After all, the McCain Amendment categorically prohibits all "cruel, inhuman and degrading treatment." Well, as I've tried to explain, Congress has defined those terms under McCain to include only what the Due Process Clause would prohibit if the interrogation were taking place in the United States. That is to say, conduct that "shocks the conscience" -- a standard that the courts have never applied in the context of interrogations intended to elicit inforformation about future terrorist activity. As I feared, the Administration apparently has (if Graham's remarks are accurate) construed the McCain "shocks the conscience" test not to prohibit techniques such as sleep deprivation and "cold cell," i.e. hypothermia. (Whether that's the best understanding of the Due Process standard is open to serious question -- certainly it would not be under Justice Kennedy's concurrence in Chavez v. Martinez, which might have the support of five Justices on today's Court (although Justices Souter and Breyer have not yet tipped their hand). But Justice Thomas's opinion in that same case indicates that it takes a whole lot more to shock his conscience (and Justice Scalia's) than it does to shock Justice Kennedy's.)
But Common Article 3 is not limited to "conscience-shocking" conduct, but instead prohibits all violence against detainees and "outrages upon personal dignity." CA3 therefore almost certainly does prohibit techniques such as cold cell, or prolonged sleep deprivation.
The Graham/McCain/Administration initiative now being hatched thus would authorize the use of techniques that would violate the Geneva Conventions. Congress has the power to do this: Where a statute authorizes something that a treaty prohibits, the statute governs for purposes of domestic law if it was enacted subsequent to the Senate's ratification of the treaty.
But make no mistake: that would place the U.S. in violation of its treaty obligations. Which is no small thing. The Solicitor General argued to the Supreme Court this past Term that treaty obligations "are too fundamental to be easily cast aside." But apparently that principle, which the Govenrment invoked as a justification for not construing a religious-liberty statute in a way that would result in a trivial violation of the Convention on Psychotropic Substances, does not apply to less important treaties, such as the Geneva Conventions.
One more thing: The Administration is pushing for this treaty violation because Common Article 3 allegedly is "too vague": "Congress needs to do something to bring clarity and certainty to Common Article Three," Steven G. Bradbury, an acting assistant attorney general, told the House Armed Services Committee on Wednesday.
But that's not right. There's nothing unusually uncertain about prohibitions on "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." Of course there are ambiguities at the margins. But that doesn't mean that the basic rules of conduct are not clear. After all, these were precisely the standards that were promulgated within the military to govern United States Armed Forces policy, against all enemies (including, e.g., irregular combatants such as the Viet Cong), from 1949 until February 2002. Indeed, Army Field Manual 34-52 provides:
Humane treatment of insurgent captives should extend far beyond compliance with Article 3, if for no other reason than to render them more suceptible to interrogation. The insurgent is trained to expect brutal treatment upon capture. If, contrary to what he has been led to believe, this mistreatment is not forthcoming, he is apt to become psychologically softened for interrogation. Furthermore, brutality by either capturing troops or friendly interrogators will reduce defections and serve as grist for the insurgent's propaganda mill.
Common Article 3 wasn't too "vague" for the 53 years that preceded February 2002. And it's not now. The problem, from the Administration's view, is not that its standards are too vague, but that they're too restrictive.
[UPDATE: The link above is to the 1987 version of Field Manual 34-52. The language in question appeared in Chapter 9, on Low Intensity Conflicts. But a revised Manual 34-52 was promulgated in 1992, and, as far as I can tell, several of the chapters in 34-52 were split off into separate Field Manuals. There's a new 1990 Field Manual devoted to the topic of Low Intensity Conflicts, FM 100-20; I haven't read it, and thus I don't know whether it includes any language about Common Article 3. The new Field Manual 34-52, circa 1992, omits the chapter on Low-Intensity Conflicts altogether. Sorry for any confusion.] Posted
by Marty Lederman [link]
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I can't figure Graham out. You've written once or twice before (possibly more) about times that he's been really admirable in defending our detainees. Then he turns around and does something like this. He must know what he's doing here. Do you (or any of the other commenters here) have a sense of what's going on with that? I'm planning on writing a letter to him on the theory that he's not totally beyond hope, and I want to make it as effective as possible.
Any pointers, advice, or information anyone can provide would be a big help and could just possibly make some kind of difference. If you or anyone else wants to write the letter with me, that would be great, but just helping me get past this stage where I'm totally baffled by him would be of great help.
Here are a few Graham-related links I've collected so far and a very brief discussion of why I'm writing to him.
Really, any analysis of his motivation would help me a lot. I feel like if this were put in the right terms, he'd see how much damage he's doing and change course. I know that's stupidly idealistic, but I'm going to try anyway.
In the Armed Services Committee hearing yesterday with six former and retired JAG’s including the JAG for each of the four services one thing struck me and I am looking forward to reading the transcript of the testimony.
If you go to www.c-span.org and click on Senate Armed Services Committee Hearing on Hamdan and go in to about 2 hours and 58 or 59 minutes you can see this exchange.
In the second round of questioning by Senator Lindsay Graham he went to the nub of the issue in addressing to what standard are soldiers trained. At the point of capture, soldiers are trained to treat everyone like a POW was the mantra of all four uniformed JAG’s. Graham went on behind that to when a military interrogator or civilian interrogator now gets access to that person captured on a POW standard basis. Such military or civilian interrogator may understand the person does not have POW status. Prior to Hamdan, such military or civilian interrogator and his/her chain of command giving orders would have not thought Common Article 3 applied pursuant to President Bush’s February 7, 2002 memo but rather the humane treatment/military necessity standard.
Graham’s concern in light of Hamdan was how to get such interrogators clear instructions so that they do not do something that violates Common Article 3. Everyone agreed that violation of Common Article 3 would be a War Crime under War Crime Act (as did administration types speaking at other hearings this week).
Graham pushed further by asking the JAG’s whether any techniques approved prior to Hamdan violated Common Article 3. The four uniformed JAG’s and two retired either said yes or agreed because Graham said something like “let the record show that all assented to the question.” This admission/opinion I found extraordinarily significant because we must remember that Common Article 3 was the law of the land from 2000-2006. The only thing (we’ll keep it simple for the purposes of this message) that changed was the President’s February 7, 2002 order and the rest of it.
Now there is some language for a “corporal’s defense” in the Detainee Treatment Act about “order/reasonable person not understand as unlawful” to provide a defense for military or civilian interrogators but that seems to me does not prevent the charging of persons who ordered and or acquiesced in or used the techniques whether military or civilian and that defense is weaker the higher you go up the chain in command. Obviously there is more on this but I found that admission very clear.
So what struck me is the consensus that some approved techniques violated Common Article 3 and violation of Common Article 3 is a crime under the War Crimes Act. Add to that former Colin Powell’s former Chief of Staff Wilkerson’s statements that there is a paper trail from the White House all the way down on this and you have a package (Jordan has brought this out in his pieces also but we now have this admission too).
It was a very extraordinary hearing. Please listen to the tape and tell me if my ears are fooling me.