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
The CIA's "Alternative Set of Procedures": Calling Things by Their Right Names
There was some very good news today -- namely, that in its revised Army Field Manual, and accompanying Directive 2310.01E, the Department of Defense appears to have committed, at least for the time being, to prohibiting the use of unlawful and abusive techniques, and to compliance with Common Article 3 of the Geneva Conventions. The new Army Field Manual goes even further, providing numerous examples of techniques -- many of which Donald Rumsfeld and Jim Haynes had previously (and eroneously) approved as "legally available" -- that will will now be off limits for all detainess in DoD custody, including: forcing a detainee to be naked or perform sexual acts; using beatings and other forms of causing pain, including electric shocks; placing hoods over prisoners’ heads or tape on their eyes; mock executions; withholding food, water or medical care; using dogs against detainees; and waterboarding.
As I explain below, however, that's only half the story, because the draft Administration bill would (i) retroactively legalize all the unlawful acts that were approved and performed from 2001 to the present day (see section 9, page 86); (ii) would cut off all judicial review of U.S. compliance with the Geneva Conventions (section 6(b), page 79); and, most importantly, (iii) would authorize the CIA -- and, for that matter, other agencies, including DoD itself -- to engage in what the President today euphemistically referred to as the CIA's "alternative set of [interrogation] procedures." Those proceudres include many techniques that today's Army Field Manual would purport to prohibit for the military. According to numerous previous reports, quoting Administration officials, such techniques have included hypothermia, threats of violence to the detainee and his family, prolonged sleep deprivation, "stress positions," and waterboarding.
The Administration draft bill would effectively authorize these techniques by conspicuously excluding them from the list of techniques that would constitute war crimes violations of Common Article 3 (section 7, pages 79-84), and also by purporting to provide -- unconvincingly -- that compliance with the McCain Amendment's "shocks the conscience" standard will satisfy the U.S.'s obligations under Common Article 3 (section 6(a), pages 78-79), even though (as I've previously explained) the Administration apparently has construed the McCain Amendment, which has governed the CIA since late December 2005, to permit the "alternative" CIA techniques.
But the draft bill would not actually identify these techniques. Such obfuscation would allow the Administration (and Congress) to nominally continue the pretense of U.S. compliance with our treaty obligations, while at the same time immunizing conduct that would appear by any reasonable account to violate the Geneva Conventions' prohibition on all "cruel treatment and torture."
On this score, Dana Priest has a very intriguing article in tomorrow's Washington Post. Priest reports that in addition to the techniques listed above (e.g., waterboarding), the CIA "alternative" techniques may also have included "extreme isolation, slapping, . . . reduced food intake, and light and sound bombardment." Whether Common Article 3 prohibits some of these techniques might be a bit more uncertain (depending, of course, on the details of how they are implemented). The most important part of Priest's article is this passage:
In the past year, the CIA has studied more closely the effectiveness of harsh interrogation techniques that it and other agencies have used and concluded that some of those were worth discarding. CIA officials have eliminated some of those techniques and, within the past two months, have begun to consult for the first time with the full Senate and House intelligence committees about creating a new list of techniques. . . . The administration will ask the intelligence committees to give it guidance to draw up a separate, shorter list of harsh techniques it might still employee under certain circumstances. The point, said one senior official, "is to make the program more durable" and not "subject to the pendulum swings" of Congress or the president.
This is potentially good news. Perhaps the techniques the Administration wishes to authorize for the CIA will not include those that are plainly illegal under Geneva. Or perhaps those techniques will include what Common Article 3 calls "cruel treatment and torture." There's no way to tell for sure based solely on the cryptic words of the Administration draft bill.
But the possibility that the congressional intelligence committees would identify the specific list of approved techniques -- presumably in the form of some proposed legislation -- would be a very positive development. That way, we could actually have a public debate about whether Congress is authorizing cruel treatment, and whether we are thus de facto breaching the Geneva Conventions. If, as the President insists, certain techniques are necessary to use in this war -- even though we have never found the need to use them in previous conflicts, and even though the Pentagon just today that "nothing good will come from" such techniques -- then at the very least we should have the decency to acknowledge what we are doing, and to stop hiding behind transparently ridiculous claims that we treat all detainees "humanely," that we do not "torture," and that all of the (undisclosed) CIA techniques are Geneva-compliant.
In his speech today, the President once again insisted that we "cannot describe the specific methods used -- I think you understand why -- if I did, it would help the terrorists learn how to resist questioning." In other words, if the detainees know what our legal limits are, they will know precisely which techniques they must resist in order to avoid revealing valuable information.
But this argument is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And, as noted above, the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.
So please, if we're going to take such a momentous step -- breaching our Geneva obligations or coming awfully close to that line -- let us do so openly and candidly, with a full public record of which legislators approve the use of waterboarding, threats, stress positions, et al., and which oppose them. Posted
by Marty Lederman [link]
... the draft Administration bill would (i) retroactively legalize all the unlawful acts that were approved and performed from 2001 to the present day (see section 9, page 86) ...
I don't think there's any mileage in demanding that all members of the military who violated the Geneva Conventions be exposed to criminal liability, even if by rights they should be. A better alternative would be to immunize anyone with a rank below, say, Major or Lieutenant Commander for acts performed under orders.
As the President has now made his long awaited admission that there have been secret CIA prisons around the world in which individuals have been held in prolonged, secret incommunicado detention in clear violation of international law (see American Society of International Law Centennial Resolution at http://www.asil.org/events/am06/resolutions.html), one has a sense of relief that the coverup is lifting and the truth at least in part has finally started to come out. In due course I am certain we will learn that the “tough” interrogation techniques admittedly used in these secret detention facilities violated Common Article 3 of the Geneva Conventions. Thus, if one was somehow still in denial, one must come to terms with the dawning realization through these admissions that violations of international humanitarian law and war crimes have been committed by the United States that were authorized by the highest levels of civilian authority of the United States.
It is important that we do not think of this failure of our leadership to respect the most elemental aspects of international law as a failure of the Executive. In time, I hope that the ranking members of the Senate and House committees (Armed Services and Intelligence Committees and possibly others) and others (dare I say the Chief Justice of the Supreme Court and/or FISA Court?) who were briefed in some manner about these practices will also come forward and tell the American people and the world (1) what did they know? (2) when did they know it? This failure is a failure of the United States and falls on each of our shoulders as a collective shame.
I hope there will come a day when on the floor of the Senate, the Senators will reveal what they knew and on the floor of the House the House members will reveal what they knew and apologize. I hope there will be a day when the United States will make an apology to the world for its weakening of the rule of law through these types of actions.
We can recognize the good intentions behind these illegal orders – to protect the American people. But the departure from civilized standards that they demonstrate in the face of substantial credible internal opposition suggests a terrible failure of character that has besmirched American honor. We ask them also to keep our honor clean and faithfully execute our laws.
How do we get back to being our selves? Might I suggest that Congress start by rejecting the Bush Administration’s Military Commission legislation which is a thinly veiled effort to amnesty actions that were done in the 2001-2006 period. Second, Congress should take its lead from the Military JAG Officers testimony this summer in fashioning a set of military commissions that start from the Uniform Code of Military Justice. We should not go off half-cocked but rather draw on the history and experience under that Code to fashion an adequate procedure that meets the strictures of our statutory and international law obligations as Hamdan has reminded all again. Third, Congress should simply refrain from any measures which would have the effect of amnestying or reducing the criminal and/or civil liability of those who authorized or engaged over the past years in the departures from civilized standards that are coming to light. The full extent of those departures (extraordinary renditions, torture and cruel inhuman and degrading treatment etc) from civilized standards are still far too unknown and merit serious examination and, as warranted, prosecution. The operative rule should be that the only salvation for those seeking to escape criminal and/or civil liability for their actions should be the Presidential pardon – not Congressional cravenness.