Clarification of What the War Crimes Amendment Would (Not) "Authorize"

Marty Lederman

In today's New York Times, I'm quoted as saying that the Administration "appear[s] to have negotiated a statutory definition of cruel treatment that doesn't cover the C.I.A. techniques," and that the negotiators "purport to foreclose the ability of the courts to determine whether [such techniques] satisfy the Geneva obligations." All that is true enough (although even this definition of "cruel treatment" obviously covers the "alternative" CIA techniques in at least some circumstances).

The lead-in sentence to this quotation, however, also characterizes me as saying that "the bill continued to allow the harsh treatment of detainees by the Central Intelligence Agency." This isn't a direct quote, and I certainly did not mean to convey any such thing. As longtime readers here know, my unequivocal view has been and continues to be that the CIA techniques such as Cold Cell, Long Time Standing, threats, stress positions, and waterboarding, are currently unlawful, because, among other things, they are "cruel treatment" and (sometimes) "torture" that Common Article 3 prohibits. Because the bill does not purport to supersede or override our obligations under Common Article 3 -- indeed, by everyone's lights, that indisputably was the principal concession that the White House made to the Senators -- those techniques would remain unlawful, even if the bill should be enacted. (I'm probably guilty of imprecision, and hyperbole, that might have led some readers to think otherwise, such as in my provocative headline the other night: "U.S. to be First Nation to Authorize Violations of Geneva." If so, my apologies. I think it is clear that the U.S. will be the first nation to formally "authorize" Geneva violations, when the Bush Administration construes this bill (if enacted) to permit the CIA techniques. But it would remain the case that the Geneva Conventions do, in fact, prohibit such techniques, which means they should continue to be unlawful.)

The serious problem with the bill, as I've discussed, is that it would define "cruel treatment" for purposes of the War Crimes Act in a confusing and inadequate manner that could readily be construed not to cover some or many of the CIA techniques. More to the point, numerous Bush officials' statements over the past 48 hours indicate that the Administration has already construed the definition in exactly that way, and that, in its view, this means not only that the CIA techniques would not be "war crimes," but also that they would not be "cruel treatment" under Common Article 3 by virtue of that statutory definition.

This conclusion demonstrates the terrible mischief of this "compromise," but it's substantively wrong. I don't know whether and to what extent McCain, et al., intended the definition of "cruel treatment" in the proposed War Crimes Act amendment to cover the CIA techniques. If McCain and other Senators do think such techniques are covered by that language, it would behoove them to say so publicly, and to explain how the proposed WCA should be construed to cover such techniques, so as to counter the Administration's manifest contrary reading. Here's what I wrote yesterday:

If Senators McCain, et al., are truly serious about bringing a halt to interrogation techniques that would place us in violation of the Geneva Conventions, then at the very least they must do this one thing: Amend the definition of "serious physical pain or suffering" to make certain that it does, in fact, encompass the physical suffering that is attendant to the cruel treatment prohibited by Common Article 3, including that caused by the CIA's "alternative" techniques.

If the Senators do not do so, it seems clear from what we've already seen that the Bush Administration lawyers will instruct the CIA that such techniques are not "cruel treatment" (even though under anyone's ordinary understanding of that term, they would be).

The Administration has been suggesting that it would somehow be inappropriate for the legislation, or the Senators, to say specifically which techniques the law would prohibit, i.e., that the law must remain so opaque that the Congress and the public don't have any idea what it does and does not prohibit. Think about that. As I say in a quote in today's Boston Globe, that's an absurd notion. After all, for many decades the U.S. Code has specified many things that are out-of-bounds for intelligence operations and armed conflict more broadly. And the Army Field Manual has for many decades provided detailed explanations of the techniques that Army interrogators may use. The newly revised Manual specifies in some detail a whole series of things that are categorically off the table for interrogations of detainees in military custody (including CIA interrogations of such prisoners). And section 8 of the "compromise" legislation itself would specify many things that would be unlawful war crimes. The problem is that it stops short of specifying the "alternative" CIA techniques. Senators McCain, et al., do not need to, and they probably should not, publicly reveal the extent to which, or circumstances under which, the CIA makes use of lawful techniques. But of course the Congress can and should specify which techniques are unlawful, if for no other reason than that it would be irresponsible for legislators to vote on a bill without having a clue what it does and does not prohibit.

But even if McCain and the legislative history do not provide any such contrary construction, and the War Crimes Act definition in the draft could be construed not to cover the CIA techniques, that would not make such techniques lawful, let alone "continue" to allow them to be used. They would, in fact, remain "cruel treatment," prohibited by Article 3(1)(a) of the Geneva Conventions. The problem, of course, is that the Administration will view -- and is viewing -- the bill as a green light to misconstrue the Geneva Conventions not to prohibit such conduct.

And, worse yet, the bill would attempt to foreclose any judicial review of whether that implausible interpretation is correct, not only by repealing the habeas rights of aliens detained overseas and at GTMO, but also by purporting to prevent any litigants, in any court proceeding, and for any reason, from invoking (and thus asking the courts to construe) any provision of the Geneva Conventions, even when such provisions might determine the outcome of the judicial proceedings in question. By thus purporting to immunize the Executive's (mis)reading of the law from any judicial oversight (a move that would raise serious constitutional questions), the bill would give the Adminisration assurance that it can mangle the interpretation of Geneva with impunity, and require the CIA to do likewise.

That's why this bill is so pernicious -- not because it would "continue to allow harsh treatment" of detainees, but because it will encourage the CIA to engage in such harsh treatment even though it remains illegal.
Posted 4:37 AM by Marty Lederman [link]