Monday, August 14, 2006
The CIA Cruelty Authorization Act of 2006
There have been several reports in recent days about drafts of the Bush Administration’s proposed amendments to the War Crimes Act. Now, Slate has published a version of those amendments that reportedly was "sent to Congress" last week. I'm informed that this proposal was, at most, shared with a few Republicans on the Hill, and that it is not the final version. Assuming, however, that this amendment is fairly close to what we will eventually see from the Administration, it is, indeed, a very big deal—but not quite for the reasons that have thus far been stressed in most accounts.
Well gee, Marty, I have to respectfully disagree. They not only can be prosecuted, they MUST be prosecuted and CONVICTED for their CRIMES.
This is about exactly what the Supreme Court said it was about: the rule of law -- and a government which will not obey its own laws is no government at all.
What is at stake here is nothing less than the legitimacy of our Republic, and the United States is NOT Nazi Germany.
At least NOT YET, despite the crimes of the Bush adminsitration.
And I don't care if it takes us 20 years or more to bring these gangsters to justice.
A further thought...
Their current efforts to modify the laws, starting with the DTA, are in fact just more evidence of the crimes. They were never concerned with actually obeying the law, but with subverting the laws to criminal purposes.
Isn't this just a simple matter of criminal elements?
The President's various "findings" facilitated and encouraged the crimes. How can that provide a defense?
And how can anyone suppose that those findings were made in good faith?
They were plainly fraudulent, and it's very clear that these people are just propagating sophistry to justify their policies without any regard for what the law actually says.
Indeed: the attmept to produce legislation that would authorize these crimes is itself criminal.
This is not the Soviet Union: the law isn't just a cattle prod for DOJ to use on the people to enforce the will of the Politburo.
Great analysis of the proposed amendments from Marty. Notice that the drafters re-use the trick of a phony title in paragraph five. The title says "intentionally causing great suffering or physical injury," but the text says nothing about prohibiting the intentional infliction of great suffering. The proposed amendments are a disaster for all the reasons Lederman, Sifton, and Gittings have noted. They should be rejected in their entirety.
Out of my league here, and this will be long and droning, but this is my take:
I absolutely agree re: the intended future use of the legislation and it should have the most focus. While I don't have any component of legislative or govt or criminal justice background, I think you dismiss the immunization aspects too lightly. You also seem to negate that the legislation impact on the UCMJ aspects, and I do not have nearly that same certainty.
I also have to say - I don't think it is completely clear that four Justices agreed with respect to Geneva Conventions not applying to detainees (Didn't Roberts, who recused, on the panel below relied primarily on the comity issue?). I think, more narrowly, that there were Justices who thought that on the issue of the tribunals, Congress had divested jurisdiction on pending cases in favor of a different format and appellate process and that there was a willingness to "wait and see" if the tribunals could be claimed to have been, as ACTUALLY conducted, within the parameters of the Conventions and UCMJ, as opposed to determining that the guidelines as proposed were so out of kilter that they would not allow for tribunals that conformed. Thomas did go further and Scalia/Alito joined with him in parts - still all relating to the commission, however, and not treatment, but the heart of each of the three dissents was different and Scalia and Alito focused on particular mechanics of statute and forebearance of decision while waiting for the process to actually unfold, IMO, FWIW.
Still, on immunization I think you miss a fairly important point. Because of the manner in which the US proceeded, without requiring criminal evidentiary basis for actions, there were people who were taken, tortured, etc. who can not be claimed to be "enemy combatants." El-Masri comes to mind in particular. The Chinese Uighar detainees. The two detainees who were being held by the Taliban bc they were anti-Bin Laden, but were scooped up in our net, family members of suspects who were also taken into custody, and possibly even journalists and civilians etc.
It is one thing to claim that the "enemy combatants" labelling created by for the President provides a good faith basis (I disagree, for several reasons, but also sadly agree with your assessment that there still would be no prosecution) to escape application of 2441; it is another thing to say that someone who is not in any conceivable manner an "enemy combatant" somehow jumps category to nonetheless become one, solely because the category is created.
As a result, I do believe that immunization for prior crimes is a significant factor. The decision to dispense with even evidence of the applicablity of the category took us into a pretty reckless territory and the result is war crimes that even the good faith belief in "enemy combatants aren't protected by common Article 3" doesn't impact.
I also think that this will have an effect with respect to the UCMJ. One aspect of Hamdan is that it also shot lots of holes in the Beaver memo's concept that violations of the UCMJ were fine as long as a superior officer authorized them (the presumption being that the uppermost echelons of the Chain would implicitly be involved in that authorization). Hamdan indicates that the CIC does not have an inherent ability to go outside both the UCMJ and the common law of war, which for the US incorporates the GConvs, to create authorization to violate either or both. OTOH, it leaves open the possiblity that Congress may. The changes to the War Crimes act, impacting, as they will, the interpretation fo the GC-s for the US, will thereby impact the interpretation of the US standards under the common law of war and under the UCMJ as it incorporates the standards of the common law of war and the GCs. IMO.
Lastly, though I am sure you are correct that, "No Justice Department, not even in the most anti-Bush Administration imaginable, would ever prosecute someone for violation of a law that the President had determined was inapplicable" I don't agree with you with respect to good faith basis.
Really, what would have been the grounds for any convictions at Nuremberg if everyone could agree that as long as a superior, or the ultimate superior, said it was ok -- it became ok?
Even so, my reaction goes deeper. The Jan 2002 memo prepared by Gonzales for the President, after the STRONG objections of Powell, seems to destroy any claim of good faith basis. The memo is an acknowledgment of the intent to commit war crimes, IMO, and an exploration of "how best to get off if we are caught." That approach to legal reasoning runs contrary to the inherent requirements of a good faith basis.
Gonzales specifically says that a reason for the label is to try to use it as a dodge around War Crimes violations. A strategic argument, not a legal one.
Long quote (probably with typos) from the memo, as to the "pros" of using the label:
Substantially reduces the threat of criminal prosecution under the War Crimes Act (18 U.S.C. 2441)
-The statute, enacted in 1996, prohibits the commission of a “war crime” by or against a U.S. person, including U.S. officials. “War crime” for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof, (such as “outrages against personal dignity”). Some of these provision apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that GPW is not applicable to the Taliban means that Section 2441 would not apply to actions taken with respect to the Taliban.
-Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons.
--First, some of the language of the GPW is undefined (it prohibits, for example “outrages upon personal dignity” and “inhumane treatment”), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
--Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.
--Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to future prosecution.
OK - let's look at those "reasons" 1, 2 & 3.
First -the GPW has some undefined terms. If this were a valid argument, it would apply with respect to every category of anyone we ever engage, including absolutely, unequivocal POWs. It is a non-argument.
Second - it is "difficult to predict" what the US may want to do. Again, how is that an "argument" that the US should not be constrained by law if it decides it "wants" to no have such constraints? Lord of the Flies as legal theory? That would be the same argument in any conflict of any nature - a war on drugs, on poverty, on bunions - i.e., that you might want to do something later that would be limited by your already existing legal obligations. I've never hear "we might not wanna do that" as a legal theory for not being bound by existing law.
Third - it is "difficult to predict" the "motives" of prosecutors who might bring "unwarranted" charges. (If they are unwarranted that seems conclusive without additional labelling). This is the ultimate in circular arguments -- if we commit a crime, and someone charges us with a crime, it won't be a crime, if you say now that they can't charge us ...
IMO, no fair reading of the 2002 memo allows for any bootstrapping of good faith and to the contrary, it shows very clearly that they knew the actions they were (likely already taking) going to continue to take were squarely within the definition of War Crimes and they were seeking euphemism on which they could craft a strategic, but not legal, defense.
But you're right about DOJ prosecutions I believe. It really is no longer, in many aspects, the United States Department of Justice. It is the law firm for President Bush and it has been diminished beyond recognition as an institution.
Apropos to Charles, I think it underlines what is at stake in '06 and '08 (and beyond ... consider how many years Chile protected their own): namely electing people who would prosecute. Who realize just how far beyond the realm of reasonableness the Bush Administration went.
How they made normal rules of respecting executive judgment moot, since they didn't honor their underlining principle -- some sort of reasonableness when acting.
And Mary is right. Looking at things now, this seems hard to imagine. But, it's possible. If the people we put in power have the will and are pushed there by public demand.
As one of the individuals quoted in teh Washington Post article referenced in the post, I would like to make a few points.
First, I totally agree with the point that this is not primarliy about DOD. DOD has never been overly concerned with the WCA, for the simple reason that the UCMJ covers the offenses established by that law and is the source of law that has and will be used to address abuses of detainees committed by members of the armed forces. What this means to me is that DOD really does not have a "dog in this fight." I think this is unfortunate, because the minimal DOD interest will make it unlikely that anyone in DOD will take a hard stand against this proposed amendment, even if they believe it is unwise or unnecessary.
However, I do not think the impact on DOD should be so quickly dismissed. I believe this amendment will have an indirect impact on DOD in two ways. First, it will limit the scope of liability for anyone whose crime is not discovered until after they are discharged from the service (it is a myth that soldiers can be "recalled" to be prosecuted - only retirees can be "recalled"). One of the purposes of the WCA was to make sure that such former service members (like the infamous Specialist Mudlow, who admitted his complicity in the Mi Lai killings on 60 minutes but was untouchable because he had already been discharged) do not avoid criminal responsibility for their misconduct simply because of discharge.
Second, and more problematic from my perspective, is the indirect influence this amendment might have on both the interpretation of the maltreatment provisions of the UCMJ, and the interpretation of CA 3 itself. Like CA 3, the "cruelty and maltreatment" article of the UCMJ is itself somewhat vague, and prosecutorial discretion is a major component in the application of this statutory prohibition. In the future, commanders and the lawyers who advise them might look to the restrictive language of the WCA amendment to conclude that the cruelty and maltreatment provision should also be more restrictively
applied when the underlying misconduct is allegedly inconsistent with CA 3. The amendment, if passed, will be viewed as a fairly clear statement of legislative intent on the scope of CA 3 criminal liability.
Beyond the impact on future criminal sanction for cruelty and maltreatment of prisoners or detainees, there is another significant negative consequence of this proposed amendment - more confusion. Uncertainty about "what law applies" and "what the law means" has already been asserted as a factor contributing to detainee abuse by the armed forces. Altering the criminal statute intended to implement U.S. obligtions under CA 3 may very will result in future confusion as to the significance of the prohibition against humiliating and degrading treatment. This confustion is dangerous, because it dilutes the underlying purpose of CA 3, which, it should be remembered, is fundamentally regulatory.
What should not be lost in all of this is that the "humiliating or degrading" treatment prohibition is intended to implement the broader humane treatment obligation established by CA 3. The purpoted motivation for this amendment excluding such treatment from the scope of criminal liability is that this concept of humane treatment is dangerously vague. However the International Committee of the Red Cross Commentary indicates that this term was left DELIBERATELY vague because efforts to define it would invariably lead to wrongdoers identifying "exceptions", a concern that seems somewhat prescient in the current context.
Congress will hopefully realize that the humane treatment obligation is really not as vague a concept as critics allege. As the drafters of CA 3 understood, it was simply a requirement to treat individuals no longer "in the fight" as human beings. The object of CA3 as NOT to protect people only from "severe" physical or mental suffering - it was to protect them from being treated as less than human because of their previous connection to an armed conflict.
The draftes of CA 3, having just lived through the most horrific war in the history of mankind, knew full well this was no easy task. Asking a warrior to start treating a captive as a "victim of war" moments after he was trying to kill you is a tall order. They also knew that this was even more challenging in the realm of non-international armed conflicts, where stakes were often regarded as even more dire (as was illustrated by the Spanish Civil War of 1936-1939, where an approximately 250,000 of the 500,000 individuals killed were estimated to have been civilians or detainees). Of course, infliction of such severe suffering is the most pernicious form of violation. However, the drafters of this seminal law of war article knew full well that the path to such "severe" infliction of suffering often begins with much more "benign" steps. Thus, the objective was clear - once captors start THINKING of their detainees as "less than human", the danger of ending up in a much more dangerous place is exponentially increased.
As a junior intelligence officer in the early 1980's, I received only a cursory overview of interrogation tactics and rules. But, I vividly remember the basic "treatment" guideline: If an enemy were about to do to YOUR subordinate what you are about to do to the prisoner, would you consider it wrong? If so, it probably violates the law. This, I believe, is totally consistent with the CA 3 approach - if you project your subordinates (who military leaders have an intense "protect" instinct over) into the situation, you should end up treating the prisoner as a human being - which is the essence of humane treatment.
Accordingly, the express inclusion of a prohibition against degrading and humiliating treatment and outrages upon personal diginity were intentional bulwarks regarded as essential to prevent heading down this slippery slope. Any move that suggests otherwise creates a risk of undermining the fundamental operation of the humane treatment mandate.
I think this is a REAL danger of this initiative. We have
already seen the consequences of such inconsistent messages on the
treatment of detainees. Now we have DOD emphasizing the applicability
of CA3 to the force, with Congress contemplating essentially modifying
the meaning of that article for purpose of criminal liability under the WCA. I thnk it is a mistake to dismiss the potential impact this incongruity will have in "the field."
The big question remains: why is this necessary? Any dangers related to "vagueness" of the CA 3 mandate can be addressed through the discretionary application of the WCA by prosecutors. CA3 was intended to be flexible, but as noted above also intended to apply a simple rule to prevent the slide into brutality - "do unto others as you would have done to YOUR subordinates." I doubt our military leaders would be happy with a "sever mental or physical suffering" qualifier on the enemy obligation to our forces. I doubt even more that many of them would intuitively identify that point as the "line of non-compliance"
with the humane treatment mandate of the law of war.
I ultimately end up agreeing that the main concern here is not DOD, but I do not agree that this will have minimal impact on DOD.
Just as we seem to be emerging from the era of "fundamental principle" tinkering, it seems to me the process is starting all over again.
"President had determined that CA3 does not apply to the conflict with Al Qaeda, and due process would prevent any prosecutions for conduct undertaken in reasonable reliance on that presidential determination. (Regardless of what one thinks of the merits of the Common Article 3 question, the reliance would be deemed reasonable, since the legal conclusion was adopted by the President and affirmed by four Supreme Court Justices [Correction -- That should be three Justices: Justice Alito did not join that part of Justice Thomas's dissenting opinion.] And even if you disagree with me on that due process question, trust me: No Justice Department, not even in the most anti-Bush Administration imaginable, would ever prosecute someone for violation of a law that the President had determined was inapplicable.)"
I think the post does go a bit too quickly over the issue of the Presidential determination. One aspect of the Presidential determination is the type of analysis done (Gonzalez memo) that basically says "do this and you immunize people from War Crimes liability" to get the determination. I would like to call this the "wink wink" determination. Such a determination might possibly not be seen as faithful execution of the laws and not be given as much weight as is suggested.
As to the prosecutorial discretion, that is the more global issue no matter what the War Crimes Act says - we do not prosecute high level civilian authority.
On the UCMJ, Geoffrey is right. However, I would go farther and add that my concern would be with the reciprocity consequences of that relaxing of the UCMJ approaches on the treatment of American detainees by our enemies.
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