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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
(CIA) Business as Usual?: Would the Administration Bill Effectively "Overrule" Hamdan?
Jack's scenario below -- in which Al Qaeda operatives seeking intelligence information from U.S. prisoners subject those detainees to mild physical assault, sleep deprivation, "long time standing," hypothermia and waterboarding -- points out a certain irony at the heart of the Administration's draft bill -- namely, that although it codifies numerous crimes in violations of the laws of war, it would appear to legalize one set of war crimes that are currently unlawful.
Two centerpieces of that bill are (i) a very detailed list of 27 categories of offenses (mostly violations of the laws of war) that could be tried by the Administration's proposed military commissions; and (ii) another detailed list of nine categories of "war crimes" that could be tried in our civilian criminal courts under a revised War Crimes Act. These two lists catalogue virtually every war-related crime imaginable -- from attacking civilians, pillaging, denying quarter, using posion, using human shields, trechery, and "conspiracy," to biological experiments, rape and hostage-taking.
There is a conspicuous omission, however: It appears that most or all of the CIA's "alternative" interrogation techniques, such as those Jack lists, are not covered on either list.
Under current law, such techniques could almost certainly be prosecuted either as violations of the laws of war, by a court martial or by a properly constituted military commission, or as "war crimes" in a civilian criminal court, under the War Crimes Act, because they violate the prohibition on "cruel treatment" in Common Article 3 of the Geneva Conventions. But under the Administration's draft bill, such conduct apparently could no longer be prosecuted under either of these two legal systems for handling war-related crimes. Therefore, if Al Qaeda today subjected our personnel to the horrors that Jack hypothesizes, we could prosecute such conduct; yet it appears that such cruel treatment would be outside the law under the Administration's proposed legislation. (Possible caveat: Such conduct might be prosecutable as "spying" under paragraph 26 of the list of military-commission offenses, not because of the techniques used, but because that provision would make criminal any attempts to collect intelligence against the U.S. "by clandestine means.")
What explains this odd proposed liberalization of a single category of war crimes?
Common Article 3, Hamdan and the CIA.
As this story in the New York Times today explains, the infamous OLC "torture memo" in August 2002 gave a green light to the CIA to engage in what another DOJ memo (not yet disclosed) apparently identified as 20 "alternative" interrogation techniques. That August 1, 2002 OLC memo, however, dealt only with the federal torture statute, which is hardly the most restrictive legal constraint with respect to such matters. Even if that memo had been correct about the definition of torture and possible legal justifications for torture (it wasn't), so what? After all, there were numerous other legal constraints on interrogation conduct that are even more restrictive than the torture statute. But Administration lawyers had also carefully provided justifications -- some valid, others less so -- for concluding that the CIA was not bound by any of those other legal restrictions, either, when interrogating suspected Al Qaeda operatives overseas. (Click on the previous link for some of the details.)
As I tried to explain in some detail 15 months ago, the most important legal move of all -- the one that made all the others possible -- was the President's determination in February 2002 that Common Article 3 of the Geneva Conventions -- which categorically prohibits all "cruel treatment," as well as torture and other conduct, with respect to persons in our custody in certain armed conflicts -- did not apply to the conflict with Al Qaeda.
Enter Hamdan. Within minutes after the Court's decision on June 29th, it was evident that the most important news was not the specific holding that the President's military commissions violated federal statutes (important as that was), but instead the momentous holding that Common Article 3 applies to the conflict with Al Qaeda as a matter of treaty interpretation.
As Dafna Linzer and Glenn Kessler explain in the Washington Post today, this holding came as a bombshell to the CIA and the Administration, in that it "in effect declar[ed] the CIA's program illegal." Hamdan "forced our hand," Dan Bartlett is quoted as acknowledging. Apparently the White House "had made no contingency plans for [such] a loss and was stunned by the decision." Stunned . . . but not yet quite ready to concede defeat. After all, what difference does a Supreme Court decision make when you have the power to cut off all judicial review?
Section 6(a) of the Administration's draft legislation would declare that compliance with the McCain Amendment would "satisfy" the U.S.'s obligations under Common Article 3. Perhaps such a legal conclusion might be reasonable if the Administration were construing the McCain Amendment the way Senator McCain intended it. But apparently they are not, instead reading the vague "shocks the conscience" standard of the due process clause (which the McCain Amendment incorporates) to permit at least some of the "alternative" CIA techniques. (For how they might reach such a conclusion, see the discussion of "Myth No. 6," here.)
The Supreme Court, however, would not be bound by the statutory declaration that such techniques comply with Common Article 3. The Court could -- and probably would -- reasonably conclude that, for example, hypothermia and stress positions are, in fact, "cruel treatment." This prospect obviously is a problem for the Administration. And so, in section 6(b), the legislation would purport to prohibit all courts from ever considering any questions relating to the interpretation or enforcement of the Geneva Conventions.
That still would not do the trick, because there's also the War Crimes Act, which criminalizes all violations of Common Article 3, and it's surely conceivable that a future Attorney General might conclude that techniques such as hypothermia and Long Time Standing are, indeed, "cruel treatment" and thus war crimes. Therefore, in section 7 of the bill, the Administration would carefully exclude most or all of the CIA's alternative techniques from the scope of the War Crimes Act.
Thus, as Adam Liptak reports in today's New York Times, and as a "senior intelligence official" confirms, "the new legislation, if enacted, would make it clear that the techniques used by the C.I.A. on senior Qaeda members who had been held abroad in secret sites would not be prohibited and that interrogators who engaged in those practices both in the past and in the future would not face prosecution."
(Some of Liptak's sources suggest that the object of the legislation "seems to be trying to surgically remove from our compliance with Geneva the section of Common Article 3 that deals with humiliating and degrading treatment." As I've tried to explain, that's not quite right -- or it's not the important part of the puzzle, anyway. The central point is not that the CIA techniques in question may be "humiliating and degrading" -- they might be sometimes, but not always, depending on how that clause is interpreted -- but instead that the techniques in question constitute "cruel treatment" under Common Article 3.)
As John Yoo states in the Liptak story, the net effect of the new legislation in the interrogation context is to allow the CIA to "operate with a freer hand" than the Defense Department "in that space between the Army Field Manual and the McCain amendment." (The bill would also allow the military itself to do the same -- but that would presumably require a controversial amendment of the Field Manual.)
In other words, the Administration would create a two-track system, almost literally a case of "good cop; bad cop." As Julian Barnes's excellent story in the L.A. Times puts it:
The Army, morally and culturally averse to using unorthodox interrogation methods, will get out of the business of using tough tactics against detainees under the compromise. The new Army field manual authorizes only 19 interrogation techniques and bans the most controversial tactics that critics said amounted to torture — hooding prisoners, conducting mock executions, and strapping detainees to boards and using water to simulate drowning. But the CIA will reserve the right to use the tougher tactics. Bush said such methods had been effective in getting some of the 14 top Al Qaeda suspects held by the agency to talk. Administration officials said the CIA tactics would be legal and fall well short of torture and abuse. But the president and others have pointedly refused to say what those tougher methods might be.
Why such a division of labor? "Each of us has our task to do," Stephen A. Cambone, the undersecretary of Defense for Intelligence, said in an interview Thursday.
Well, that's one way of looking at it.
As Professor Yoo notes, this would, in effect, be a "rejection of what the Court did in Hamdan." According to Linzer and Kessler, this part of the Administration's strategy is a "reward" to Vice President Cheney, who would otherwise have "essentially lost out on a program [the CIA black sites program] he had fought to preserve."
The final line in that story, however, inserts a note of ambiguity. "'It's true the program could continue, but it will never occur in the same manner that it operated before,' said one influential official."
Perhaps, as Dana Priest's story yesterday suggested, this means that not all of the CIA techniques would be made lawful by the proposed bill. Perhaps even the Administration concedes that some of those techniques "shock the conscience," and thus would violate the McCain Amendment. It's impossible to tell from the current draft language. (Perhaps the ambiguity resides in the bill's new war crimes category caleld "Cruel or Inhuman Treatment." For the most part, that crime is defined only to prohibit torture as it is (narrowly) defined under federal law. But it also includes an odd reference to "severe physical abuse" (page 80, line 23) as an example of what constitutes severe physical pain. I have no idea what that new phrase is supposed to mean, whether it makes this category broader than the "torture" described in subparagraph (1), and/or whether it would best be read to incorporate some of the "alternative" CIA techniques.)
Not even Congress itself knows what this bill would, and would not, authorize. Barnes reports that "[o]n Capitol Hill, lawmakers and aides have expressed frustration that they have not been told what the CIA techniques were and whether the agency would adhere to the ban on torture. 'We don't know what the methods are; that is where the difficulty lies,' said a congressional aide."
The Administration claims a need to provide clarity in the War Crimes Act; but their proposal would if anything, make it much more ambiguous . . . which might, after all, be the whole point of the exercise, because in ambiguity lies the seeds of loopholes to be exploited by creative lawyers. Posted
by Marty Lederman [link]
Thanks Marty, May I suggest that the thing about all of these points is that this is all inside-US foreign relations law baseball and not international law? Congress and the President can play all kinds of word games and create two tracks etc but the background obligation as stated in Hamdan is Common Article 3. Congress can overrule Hamdan and interpret everything to make all words have indeterminate meaning within the United States as long as it passes constitutional muster - but so what? We should not fool ourselves into thinking - as apparently some of the people in this Administration are trying to do to themselves again - that we can just "fix it the way we want it" and get away with it. This is not a set of legal gymnastic games. This is a situation where every little game we play can be replicated in every country in the world where Americans (civilian, CIA and military) are forwardly projected (some 130 countries for military and more for the rest). So if we we play this game and they play this game in a race to the bottom we will all lose, particularly our military. Congress should take a page from Nancy Reagan and "Just Say No" on this draft and the compromise draft of Warner which is itself still weak. Can we please not - repeat not - try to weaken the Geneva Conventions? Are we not capable of that? All of these persons were complicit in allowing these things to happen. I talk about this over at Jurist today at http://jurist.law.pitt.edu/forumy/2006/09/moving-beyond-secret-prisons.php . Why don't we start with an apology to the world - especially by the lawyers - for weakening the rule of law? Best, Ben
The Congress doesn't have any more authority to commit or authorize war crimes than the President does, and there is nothing about such criminal acts that can rightly be called "law". We have faced worse dangers than these with better leaders than the disgraceful hypocrites of the Bush Administration and their supporters in the 109th Congress...
LIEBER CODE (1863)
Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law: it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity - virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.
The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
Thanks for this post. This blog, along with some other legal blogs, have been absolutely essential to laypeople like myself.
But I'd like to emphatically agree with your commenters here. The most troubling thing of all is that we seem to have become a nation that is openly debating the nuances of torture, instead of one that rejects it categorically. The Congress should, indeed, just say no; and the next President (hopefully Gore -- something I wish for almost enough to get religion and start praying) should make it his or her top priority to openly and immediately reverse all of these disgusting "anti-terrorism" policies, which have not only created terrorists rather than eliminating them, but are simply immoral, illegal, and unacceptable for any people that wishes to consider itself civilized.