Balkinization: Even OLC is Unwilling to Say That These Techniques Comply with Geneva

Even OLC is Unwilling to Say That These Techniques Comply with Geneva

Marty Lederman

An important article from Katherine Shrader of the Associated Press, putting some more of the pieces together.

Shrader confirms that waterboarding, hypothermia and sleep deprivation are among the techniques in question; that even after the 2005 McCain Amendment, "the CIA believed it was operating lawfully" in using at least some such techniques; but that the Hamdan decision "demolished that legal foundation."

The key passage:

The high court's ruling in June, in a case involving Salim Ahmed Hamdan, essentially said that the Geneva Conventions on the rights of wartime prisoners [actually, that should only be Article 3 of those treaties] should apply to the suspected terrorists in CIA custody. That meant that for the first time since the interrogation program was born in 2002, the Justice Department could not give the CIA a written opinion on whether its techniques still were legal. Spy agencies rely on such opinions to justify activities that get little, if any, public scrutiny.

That is to say: This Administration has been willing to rest its terrorism policies on plenty of unorthodox legal interpretations -- such as that waterboarding is not "torture" -- but the preposterous notion that the CIA techniques in question comply with Common Article 3's prohibition on cruel treatment is simply a bridge too far, even for this OLC.

Yet, remarkably, that is precisely the implausible "interpretation" of CA3 that the proposed Administration bill is asking Congress to codify -- and to strip the courts from reviewing. Lindsey Graham calls them on this transparently cynical tactic: "What is being billed as clarifying our treaty obligations will be seen as withdrawing from the treaty obligations." In fact, that's putting it nicely: If the Administration bill becomes law, it will quite reasonably be viewed, the world over, as authorization to breach the Geneva Conventions by engaging in what is manifestly "cruel treatment" . . . and in some cases, to do what virtually anyone would consider, simply, "torture."

[UPDATE: John Negroponte confirms that the Hamdan decision ended U.S. torture -- at least until the Administration can convince Congress to reinstitute it:

CHRIS WALLACE: [The President] said, "If you don't clarify, this program will end." Does that mean that if you capture a high-value Al Qaeda target, CIA officers will not interrogate him?
NEGROPONTE: That person may be questioned, but using the kinds of aggressive techniques, the tough techniques that the president was referring to the other day may be problematic because of the uncertainty that has been introduced by the current situation. So all these patriotic, professional agents are looking for is the kind of clarity to ensure that they will not be violating the law when they carry out these interrogations.

WALLACE: But you're saying the full array of interrogation techniques that they've used in the past they might not use now?

NEGROPONTE: At this particular point in time, that issue is up in the air.

WALLACE: Since the Supreme Court said in June that these interrogations are now covered by the Geneva Conventions, have any CIA officers refused to carry out any interrogations?

* * * *

NEGROPONTE: I think the way I would answer you in regard to that question is there's been precious little activity of that kind for a number of months now and certainly since the Supreme Court decision.
WALLACE: That has curtailed the kind of questioning that they have done.

NEGROPONTE: There just simply hasn't been that kind of activity.]

Posted 2:41 PM by Marty Lederman [link]

Comments:

Precisely. And this is nothing new: the administration has been trying to sell the same lies in order to conceal and justify their own WAR CRIMES from the start. Everything under discussion now was implicit in the administration's utterly corrupt "interpretation" of the Geneva Conventions issued by Bush in February 2002:

"3. Of course, our values as a nation, values that we share with many nations in
the world, call for us to treat detainees humanely, including those who are not
legally entitled to such treatment. Our nation has been and will continue to be
a strong supporter of Geneva and its principles. As a matter of policy, the
United States Armed Forces shall continue to treat detainees humanely and, to
the extent appropriate and consistent with military necessity, in a manner
consistent with the principles of Geneva.

"4. The United States will hold states, organizations, and individuals who gain
control of United States personnel responsible for treating such personnel
humanely and consistent with applicable law.

"5. I hereby reaffirm the order previously issued by the secretary of defense to
the United States Armed Forces requiring that the detainees be treated humanely
and, to the extent appropriate and consistent with military necessity, in a
manner consistent with the principles of Geneva."

George Bush (David Addington & Alberto Gonzales), memorandum for the Vice President, et al., HUMANE TREATMENT OF TALIBAN AND AL QAEDA DETAINEES, The White House (2002.02.07).

There was nothing unlcear about anything then, and there's nothing unclear about any of it now: "military necessity" does not and cannot justify the abuse of a defenseless prisoner -- what Bush really said in that memo was "we will obey Geneva except when we VIOLATE Geneva."

Note especially that the language of that memo presupposes the existence of a clear understanding of just exactly what the "principles of Geneva" are.

The truth is clear: Mr. Bush is a contemptible LIAR and a WAR CRIMINAL.

# posted by

Charles Gittings : 5:24 PM

The cited AP article says that McCain's bill would protect U.S. personnel from prosecution and civil suits, but that the CIA wants more, namely for Congress to "bless" the techniques at question. Apart from a warm and fuzzy feeling that a majority of members of Congress think that what one is doing complies with CA3 of the Geneva Conventions, are there any other benefits from such a blessing? In other words, I just don't see why Bush is being so rigid, apart, of course, from whatever political benefits he thinks he can achieve by looking tough, challenging McCain, and continuing to scare the public.

# posted by

Joel : 10:04 AM

Sorry to post twice in a row and in effect thinking this through out loud, but I think I'm starting to figure this out. Is the "bless[ing]" the reporter referred to a legal one? That is, would the Supreme Court be harder pressed to overturn a new law if it not only amended U.S. law but also interpreted the Geneva Conventions? Gotta go watch the Webb/Allen debate on Meet the Press. Thanks for your time and thanks in advance for any responses to my comments.
votehurstdumpdavis.blogspot.com

# posted by

Joel : 10:36 AM

The President's bill would make these techniques legal.

The Graham/Warner bill would leave them illegal, but strip the courts of jurisdiction to stop them.

I imagine a substantial number of career CIA agents don't want to be involved with breaking the law even if they are unlikely to be punished. The belief that the executive branch should execute the laws, not violate them, is not that unusual among its employees. As I understand, professional ethics doesn't allow a lawyer to issue a formal opinion saying "This is illegal, but it's OK to do it because you won't be punished", so these people aren't going to get the legal sign-offs they want either.

Also, the government would find itself hard-pushed to deal with leakers if it was breaking the law, because illegal government programmes cannot be properly classified.

# posted by

LibertyCat : 11:31 AM

Liberty Cat, thanks for the clarification. That makes sense. On the other hand, it's deplorable that neither Bush's camp nor McCain's will spell this out. Of course, between the condemnation they'd face and the political benefits they'd jeopardize, it's understandable. That leaves brave, principled, and intelligent observers like the posters and commentators here to explain what's really going on. I also understand politically the advantage Democrats see in staying out of the intra-Republican fray, but I'm disappointed in the lack of a Democratic leader. Webb didn't rise to the occasion this morning.

# posted by

Joel : 1:26 PM

Joel has asked some good questions. The basic problem for the administration is that their fraudulent legal theory (hatched by David Addington and John Yoo in 2001) finally disintegrated in Hamdan.

So this is a salvage operation with two objects:

1) Reconstruct a plausible legal cover for the administration's on-going war crimes.

2) Prevent meaningful judicial review of the administration's policies and actions.

Now the bad news, as always, is that the fundamental purpose of all this is in fact to commit WAR CRIMES by policy.

The good news is that, as always, what the administration and the Republican majority in Congress thinks is lawful or constitutional, what they think the Supreme Court will swallow, and what the law actually says are three different things entirely. Since the only parts the administration and their supporters understand are their own self-serving frauds, the chance that anything they do will be legal is effectively zero.

What remains is the obligation of every rational human being on the planet to see to it that these congenital criminals are tried and convicted for their crimes.

No matter how long it takes.

# posted by

Charles Gittings : 4:51 PM

I wonder if there are any publicly available documents in a thorough format, referenced and footnoted, describing the programs which the linked Katherine Schrader AP article described as fairly curtailed or in abeyance, pursuant to the 'timeout' forced by the Hamdan decision June 2006.

I would imagine such documents being developed in many agencies; certainly, Department of Justice, as various consultative groups contributed to defining the bounds of programs in existence for roughing up prisoners.

UCMJ traces its own concerns. But, I suspect there are other documents which are analogs of UCMJ, at other agencies.

What I would like congress to have at its disposal and to discuss publicly is a thorough history of these programs, which I suspect were fairly miniscule until the current pair of conflicts abroad addressing stateless terrorism networks yielded hundreds of detainees and multiplied, doubtless, hundredfold, the numbers of agents required to conduct brutal interrogations.

I would like some of these internal agency histories to see the light of day, in a format, for example, like the July 2006 letter about military commissions in a post-Hamdan-decision world written by "a group of constitutional law scholars and former government officials, writing in [their] individual capacities"; that letter was part of a process in which Dept of Justice had written Sen. Schumer to claim that [the Hamdan decision's invocation of Geneva common article 3] in DoJ's opinion “does not affect our analysis of the Terrorist Surveillance Program.” The constitutional scholars'/ former government officials' letter is carefully referenced to precedents in Supreme Court law, UCMJ, legal website archives and the like; the standard thorough documenting technique used in briefs and technical papers.

I would like congress to compile a similarly thorough assessment of the programs that have been going on. Maybe it is a project for the Congressional Research Service.

Besides corporal abuse, I imagine pharmacologic methods are part of many interrogations. There was an era following the Korean 'UN police action' when some US government agencies were in the media saying chemically induced confessions would be the modality of choice in future interrogations; but little about this is in the news in our time.

These are difficult topics; congress has its opportunity now, for the first time to air them in the public forum.

Our host had work in OLC in a timeframe as I understand it, principally centered well after the then-president's involvement in a plea for mercy in a corporal punishment case in 2004 in Singapore. I wonder if at that time our host might have seen at OLC a library of related authorizations addressing US as well as international law in this field of corporeal abuse of prisoners.

It is known that some 'societies' continue with institutionalized corporeal mistreatment of prisoners; but it is creeping back into US 'society' as well; consider this article about a US city mayor who suggested in 2006 that his town council legalize battery upon prisoners who committed offenses such as the US teen who was caned for punishment in Singapore in 2004. The city attorney recommended the mayor abort his suggested ordinance as it is unconstitutional. I wonder if congress is contemplating caselaw developing toward permitting suggestions such as the linked one in the matter of the 'mayor.

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