The burning question

David Luban

The burning question is: What did the Bush administration do to break John McCain when a North Vietnamese prison camp couldn’t?

Could it have been Ego Up? I’m told that Ego Up is not possible with a United States Senator. Come to think of it, that also rules out Ego Down. Fear Up Harsh? McCain doesn’t have the reputation of someone who scares easily. False Flag? Did he think they were sending him to the vice-president’s office? No, he already knew he was in the vice-president’s office. Wait, I think I know the answer: Futility – which the Army’s old Field Manual on interrogation defined as explaining rationally to someone why holding out is hopeless. In this case, the explanation might have been that the Bush lawyers would successfully loophole any law McCain might write, so why bother? Yes, "Futility" might have done the trick.

How else can we explain McCain’s surrender on the torture issue, one on which in the past he has been as passionate as Lindsey Graham was on secret evidence?

Marty’s posts here and here have explained some of the detailed points of capitulation, but there are others. The fact is, virtually every word is a capitulation, including "and" and "the". Here are three points that seem specially significant. (Perhaps the most significant is stripping habeas jurisdiction from the courts; but I won't consider that here.)

GOOD-BYE, INTERNATIONAL LAW

1. Consider, for example, section 8(a)(2): "The provisions in [the War Crimes Statute], as amended by this section, fully satisfy the obligation...for the United States to provide effective penal sanctions for grave breaches which are encompassed in Common Article 3 in the context of an armed conflict not of an international character. No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection 2441(d)."

That means the customary international law of war is henceforth gone in the United States – ironically, to say the least, because it was the U.S. Army’s Lieber Code that forms the basis for the Law of Armed Conflict (LOAC) and which launched the entire world-wide enterprise of genuinely international humanitarian law. Ironically as well, because our own military has taken customary LOAC as its guide, and used it to train officers and interrogators. Apparently there is no need to do that anymore, at least when it comes to war crimes. Goodbye, International Committee of the Red Cross; the Swiss can now go back to their fondue and cuckoo clocks. (Those who, like me, shelled out over $400 for the ICRC’s three-volume treatise on Customary International Humanitarian Law can try to sell it on E-Bay.) Goodbye, jurisprudence of the Yugoslav tribunal, which the United States was instrumental in forming.

GOOD-BYE, NUREMBERG

And goodbye Nuremberg. September 30 and October 1 mark the sixtieth anniversary of the Nuremberg Tribunal’s judgment. I have recently been reading Telford Taylor’s superb Anatomy of the Nuremberg Trials. One thing that absolutely leaps out of the opening chapters is the burning desire of the United States to create international law using these trials. Great Britain initially opposed the trials and preferred simply to shoot the top Nazis, out of fear that they would use the trials for propaganda. Stalin favored trials, but only to establish punishments, not guilt; like Great Britain, he thought that punishing the top Nazis should be a political decision. The trials happened only because the United States insisted on them, for purposes of establishing future law – a task that summary justice at executive say-so could never do.

At the London Conference that wrote the Nuremberg Charter, France and Russia both objected to criminalizing aggressive war for anybody but the Axis countries. Supreme Court Justice Robert Jackson, the American representative, insisted that creating universally binding international law was the prime purpose of the Tribunal. (See Taylor, pp. 65-67.) A compromise left the international status of Nuremberg law ambiguous – the Tribunal’s jurisdiction covered only the Axis countries, but nowhere does the Charter suggest that the crimes it was trying were only crimes if the Axis committed them. Because of this ambiguity, the status of the Nuremberg principles as international law was not established until 1950, when the United Nations General Assembly proclaimed seven Nuremberg principles to be international law.

Well, forget all that. The Nuremberg Principles, like the entire body of international humanitarian law, will have no purchase in the courts of the United States. Who cares whether they were our idea? Principle VI defines war crimes as "violations of the laws or customs of war, which include, but are not limited to,...ill-treatment of prisoners of war." Forget "customs of war" – that sounds like customary international law, which has no place in our courts. Forget "ill-treatment" – it’s too vague. Take this one: Principle II, "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law." Section 8(a)(2) means that we couldn’t care less about that idea. Or Principle IV: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." Moral, shmoral. The question is, do you want the program or don’t you?

JURISPRUDENCE OF PAIN, PAIN OF JURISPRUDENCE

2. The Nuremberg trials presupposed something about the normal human conscience: that moral choice doesn’t take its cues solely from legalisms and technicalities. The new bill takes the opposite stance: technicality triumphs over conscience and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain. It distinguishes "severe pain" – the hallmark of torture – from (merely?) "serious" pain – the hallmark of cruel and degrading treatment, usually thought to denote mistreatment short of torture. But then it defines serious physical pain as "bodily injury that involves...extreme physical pain." To my untutored ears, "extreme" sounds very similar to "severe" – indeed, it sounds worse than severe. (That’s why they call it "extreme". Doh!) But in any case, it certainly sounds worse than "serious". And you thought that the Office of Legal Counsel had lost its marbles when it issued the original torture memo, with its "organ failure or death" definition of "severe pain," drawn from a Medicare statute. The OLC lawyers must be rubbing their hands together in anticipation – clearly, they have some finger-lickin’-good opinion writing ahead of them.

LIFE IMITATES ART

3. And then there is section 8(3), which states that "the President has the authority for theUnited States to interpret the meaning and application of the Geneva Conventions," and in section (B) makes it clear that his interpretation "shall be authoritative (as to non-grave breach provisions)."

On August 1, 2006, the satirical newspaper The Onion ran a story headlined "Bush Grants Self Permission to Grant More Power to Self." It began: "In a decisive 1–0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers." And it ended thus: "Republicans fearful that the president's new power undermines their ability to grant him power have proposed a new law that would allow senators to permit him to grant himself power." How life imitates art! In the end, the three courageous Republican mavericks didn’t want the President unilaterally twisting Geneva until it screamed. Now it turns out that the principle they were fighting for was Congress’s prerogative to grant him the unreviewable power to do so.
Posted 6:24 PM by David Luban [link]