The CIA Cruelty Authorization Act of 2006

Marty Lederman

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.

Currently, the federal War Crimes Act provides for criminal sanctions (up to life imprisonment, or even death in extreme cases) for all violations of Common Article 3 of the Geneva Conventions. Until the Supreme Court's decision in June in Hamdan v. Rumsfeld, this provision of the War Crimes Act was, for all practical purposes, inapposite to the conflict with Al Qaeda, because the President had determined that Common Article 3 categorically did not apply to that conflict. As we have explained several times in this space, however, the most important practical aspect of the Hamdan decision was the Court's holding that Common Article 3 does apply to the armed conflict with Al Qaeda.

Naturally, this created a big problem for the CIA, because several of the “enhanced” interrogation techniques that the Agency is reported to have been using are almost certainly prohibited by Common Article 3—and thus such techniques are now war crimes, punishable by severe sanctions.

Hence, the Administration's proposal to amend the War Crimes Act. The proposal (set out below) would limit the War Crimes Act to certain, identified subclasses of CA3 violations.

Most reports of the Administration's proposal have focused on one or more of three things:

1. Its defenders say that such an amendment is necessary to provide clarification to the Armed Services as to where the legal line is to be drawn in their treatment of detainees.

2. Several observers, including John Sifton in Slate, and others quoted in this Washington Post article, suggest that the Administration proposal is designed to immunize government officials for possible war crimes violations that occurred before the decision in Hamdan. [Clarification: John Sifton's fine, comprehensive essay is not only about backward-looking culpability; he also emphasizes, as I do, the immunizing of cruel treatment going forward.]

3. And most accounts of the proposal have focused on the fact that it would eliminate from the War Crimes Act all CA3 violations based upon "outrages upon personal dignity" and "humiliating and degrading treatment." Defenders of the Administration suggest that "mere" degrading treatment should not be treated as a severe "war crime," and that in any event that standard is too vague and variable (what's degrading to some might not be to others, etc.). Critics, by contrast, complain that eliminating "humiliating and degrading" treatment from the War Crimes Act will give a green light to the sorts of degradation and humiliation we saw at GTMO and at Abu Ghraib.

In my view, all three of these reactions misses the mark in important ways. The real importance of the amendment has little or nothing to do with the military, or with past conduct, and very little to do with "humiliating and degrading treatment." It is, instead, that this amendment is part of an effort to authorize the CIA to continue to use interrogation techniques that violate Common Article 3's prohibition on "cruel treatment and torture" -- including hypothermia, threats of violence to the detainee and his family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly even waterboarding.

I'll explain briefly below why the initial responses are slightly off-the-mark in their emphases. But the important action -- the place everyone should be looking -- is in the first paragraph of the Administration's draft. That paragraph is entitled "Torture, inhuman treatment, or cruel treatment." This presumably is intended to give the impression that Paragraph (1) covers all violations of the latter half of subsection (1)(a) of Common Article 3, which flatly prohibits all "cruel treatment and torture." But paragraph (1) of the Administration draft does not come close to covering all of the cruel treatment and torture that Common Article 3 prohibits. That paragraph instead encompasses only conduct defined as "torture" under the federal torture statute, 18 USC 2340-2340A. Indeed, it incorporates directly the definition of torture from that federal statute.

The Administration has determined that the "enhanced" CIA techniques are not torture under the federal torture law. And, at least as to some of those techniques, they're probably right (although not as to others, such as waterboarding, which is intended to create severe physical suffering and thus is torture, contrary to what OLC apparently has concluded). Accordingly, those techniques -- again, that would be hypothermia, threats of violence to the detainee and his family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly waterboarding -- would not be covered by the new War Crimes Act, even though they almost certainly are prohibited "cruel treatment" (or "torture") under Geneva Common Article 3.

Notice this: The Administration proposal identifies numerous specific categories of conduct that would violate the War Crimes Act. But it's no coincidence that none of those categories covers the CIA techniques -- not even threats. [UPDATE: Thanks to Jamie M. for pointing out that although paragraph 5 of the Administration proposal is entitled "Intentionally causing great suffering or serious injury," the text of that paragraph does not, in fact, prohibit "intentionally causing great suffering" -- again, because if it did, the CIA's techniques, many of which are specifically designed to cause great suffering (the better to elicit information), would be war crimes.]

Eliminating coverage of these techniques under the War Crimes Act would not be sufficient to authorize the CIA to continue using these techniques, because Common Article 3 itself would still prohibit them. That's why the Administration needs another couple of statutory amendments, too: One would adopt the "shock the conscience" standard of the McCain Amendment as the governing standard for all CIA interrogations (a tactic that I discuss here); and the other would cut off all judicial review of questions relating to the Geneva Conventions.

But make no mistake: The biggest part of the puzzle for the CIA is to eliminate the most serious deterrent to the use of these techniques -- possible war-crimes culpability.

Now, as to why the other reactions are not quite on-point:

1. The Proposal is Designed to Give Guidance to Military Personnel.

This is transparent nonsense. As I've previously written, the armed services are subject to standards far more restrictive than those found in Common Article 3 -- under the Uniform Code of Military Justice and the Army Field Manual (which they must apply, as a matter of statutory law). Moreover, they are trained to comply with the even higher standards of the protections for POWs in the Geneva Conventions. Why, then, would they need further legal clarification or modification of Common Article 3 or the War Crimes Act, which are much less restrictive than the standards that otherwise govern the armed forces? Answer: They don't. This amendment has nothing whatsoever to do with the military. It's about the CIA.

2. The Proposal is Designed to Provide Immunity for Past Misconduct.

I don't think so. To the extent officials violated the standards of Common Article 3 with respect to Al Qaeda prior to June 29, 2006 (the date of Hamdan), they could not be prosecuted for such violations of CA3 (as incorporated in the War Crimes Act), even without the Administration's amendment, because the 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.)

This is not to say that such persons could not be prosecuted under some other law -- say, for violation of the UCMJ, or the assault or torture statutes, or even other parts of the War Crimes Act. But the Administration's proposal (at least the version we've seen so far) would not affect those other statutes or provide immunity for past violations of them. It would only affect Common Article 3 violations of the War Crimes Act -- and prosecution for those violations would be impossible and inconceivable, anyway.

So, it's not really (or primarily) about "immunity" for past conduct; it is, instead, about immunity for future cruel treatment and torture.

3. The Proposal is Designed to Deal with "Humiliating and Degrading Treatment."

Well, perhaps in small part, it is. But that's really a sideshow. The Administration's preferred focus on humiliating and degrading treatment diverts attention from the real heart of the matter, which will be how they define "cruel treatment and torture," and, in particular, whether the CIA enhanced interrogation techniques are covered.

The Administration and its backers (e.g., Senators Cornyn, Thune, Roberts, etc.) are getting a lot of mileage out of the notion that what is "degrading" to some cultures might not be "degrading" to others, that "dignity" is a fluid and vague concept, and that, at the very least, these standards are inappropriate for imposition of criminal sanctions. Putting underwear on someone's head, or mocking the Koran, might be stupid, and odious, and even illegal -- but it seems odd if not perverse to most folks to call it a "war crime."

I happen to think it would be a mistake to exclude humiliating and degrading treatment from the WCA. But many will disagree with me. What's important is to realize that this dispute about how "degrading" treatment should be handled is not why the Administration is proposing an amendment to the WCA. Their public focus on subsection (1)(c) of CA3 -- the provision dealing with humiliating and degarding treatment -- is a feint to throw everyone off the scent. The real issue is the CIA. And that agency is not so interested in making use of the stupid and offensive techniques that were used on Al-Qahtani at GTMO -- religious degradation, underwear on the head, etc.

What they are interested in are the "enhanced" techniques that they've been authorized to use -- including hypothermia, threats of violence to the detainee's family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly even waterboarding. With respect to these techniques, the issue isn't the ban on humiliation or degradation -- it's that they are "cruel treatment," perhaps even "torture," under subsection (1)(a) of Common Article 3.

I'm fairly confident that when we see the Administration's proposed amendment to the War Crimes Act, it will not cover these enhanced techniques. And therefore the proposal will, in effect, authorize these violations of CA3, which are much easier to understand as war crimes than "mere" humiliation and degradation. There might be debate, and confusion, about humiliation and degradation. But there ought to be a consensus in the Congress and the public that "cruel treatment," as such, and as understood under Common Article 3, is a war crime and should be treated as such.

So that's where the focus should be. Senators should be prepared to offer amendments to the Administration proposal that would specifically cover these techniques under the category of "cruel treatment and torture." If the Administration resists such an amendment, as it is likely to do, the burden will be on the Department of Justice to explain either why hypothermia and threats, etc., are not "cruel treatment" under Geneva Common Article 3, or, alternatively, why the United States Congress should authorize the CIA to engage in cruel treatment that violates our treaty obligations.

In sum, we should stop talking about humiliation and outrage, and start talking about cruelty (and torture) -- and about whether our national legislature should authorize the CIA to engage in such cruelty, notwithstanding the fact that it would violate the Geneva Conventions.

[UPDATE: In the comments below, Prof. Geoffrey Corn has some important thoughts about the ramifications -- including in the military -- of eliminating the prohibition on humiliating and degrading treatment. Prof. Corn's comments confirm why that would be a very significant mistake, even if I continue to think that the principal action is w/r/t "cruel treatment and torture."]

Here's the amendment proposed by the Bush Administration to the War Crimes Act:

Section 2441 of title 18, United States Code, is amended by replacing subsection (c)(3) with the following:

"which constitutes any of the following offenses, when committed in the context of and in association with an armed conflict not of an international character under common Article 3 of the international conventions signed at Geneva 12 August 1949:

1. Torture, inhuman treatment, or cruel treatment. -- Any person who commits, or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control shall be guilty of a violation of this subsection. "Severe mental pain or suffering" has the meaning provided in 18 USC 2340(2).

2. Performing biological experiments. -- Any person who subjects one or more persons to biological experiments without a legitimate medical purpose and in so doing seriously endangers the body or health or such person or persons shall be guilty of a violation of this subsection.

3. Intentionally killing any person taking no active part in the hostilities. -- Any person who intentionally kills, or attempts to kill, one or more persons who were taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

4. Mutilating or maiming any person taking no active part in the hostilities. -- Any person who intentionally injures, or attempts to injure, one or more persons who were taking no active part [in hostilities], including those placed hors de combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

5. Intentionally causing great suffering or serious injury. -- Any person who intentionally causes, or attempts to cause, serious bodily injury to one or more persons who were taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, or intentionally engages in conduct that places such a person at significant risk of serious bodily injury, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. "Serious bodily injury" has the meaning provided in 18 USC 1365(h)(3).

6. Rape -- Any person who forcibly or with coercion or threat of force wrongfully invades, or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object shall be guilty of a violation of this subsection.

7. Sexual assault or abuse. -- Any person who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one of more persons to engage in sexual contact shall be guilty of a violation of this subsection. For purpose of this offense, "sexual contact" has the meaning provided in 18 USC 2246(3).

8. Taking hostages. -- Any person who, having knowingly seized or detained one or more persons in violation of the laws of armed conflict, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be guilty of a violation of this amendment."

Posted 3:11 PM by Marty Lederman [link]