Balkinization  

Saturday, September 16, 2006

Getting with "The Program": Clarity Through Obfuscation

Marty Lederman

Then there are those days when the President of the United States and "senior administration officials" make a humble blogger's life easy, by confirming everything that up until now I could only glean from supposition and reading the runes of carefully phrased legalisms.

In his impassioned press conference yesterday, the President acknowledged that the Hamdan decision, by clarifying that Common Article 3 applies to the conflict with Al Qaeda, had rendered the CIA's "program" of "alternative" interrogation techniques unlawful, and that unless the Administration's bill is enacted, "the program" cannot lawfully continue:

This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article 3 of the Geneva Convention. [T]he bottom line is . . . that this program won't go forward if there's vague standards applied like those in Common Article 3 of the Geneva Convention. . . . You can't ask a young professional on the front line of protecting this country to violate law. Now, I know they say they're not going to prosecute them. Think about that, you know. "Go ahead and violate it, we won't prosecute you." These people aren't going to do that.

And in a story today, Jeff Smith of the Washington Post quotes one "well-informed source" as saying that the techniques "include prolonged sleep deprivation and forced standing or other stress positions," and that the techniques "match the techniques used by the agency in the past," which I describe here.

Smith identifies "a notable exception: The CIA no longer seeks to use a notorious technique called 'waterboarding,' which is meant to simulate drowning." Note the phrasing: Merely that the CIA no longer "seeks to use" waterboarding. Not that waterboarding would be unlawful under the Administration bill. To the contrary, "[p]rivately, the administration has concluded that [enactment of the Bush proposal] would allow the CIA to keep using virtually all the interrogation methods it has employed for the past five years, the officials said." So perhaps, if Congress were to enact the Administration bill, even waterboarding would be back on the table, should the CIA once again "seek to use it."

The referennce in the President's remarks to the so-called "vague standards" of Common Article 3 was a recurrent theme in his statement. No fewer than 16 times, he asserted that his proposal would provide "clear" or "definite" interrogation standards, or would bring "clarity" to the law.

As readers of this blog know, this is, of course, a joke -- or as Jeff Smith puts it, an "irony" of the Administration's position. Smith is exactly right in this respect: "The administration says its intent is to define the explicit meaning of Common Article 3 so that CIA officers know exactly what they can do. But the senior official who addressed the legal issue yesterday said the standard the administration prefers is 'context-sensitive,' a phrase that suggests an endlessly shifting application of the rules."

The Administration bill would make the McCain Amendment, which incorporates the Due Process Clause's "shocks the conscience" test, the touchstone for legality. As I suspected (see the discussion of "Myth No. 6" here, and Point No. 2, here), the Administration has construed that test to allow the use of the CIA enhanced techniques -- persumably because their consciences just aren't that shockable. (Whatever happened to "shock and awe"?) Smith reports that an "unpublicized memo to the CIA from the Justice Department's Office of Legal Counsel" names "the precise interrogation methods the department believed to be sanctioned by [the McCain Amendment]." (Shouldn't that memo be made available to Congress, so that the legislature can see exactly what it's being asked to authorize?)

Not surprisingly, this comes as a surprise to Senator McCain himself: "A retired intelligence professional who said he has discussed the matter at length with colleagues said the predominant view at the agency is that McCain -- who made clear in congressional debate last year that he disapproved of what the CIA was doing -- was surprised to learn later that the [McCain Amendment] did not put a stop to it." Senator McCain perhaps underestimated the ingenuity of the Vice President and his attorneys. As the Vice President explained, what "shocks the conscience" is "in the eye of the beholder." And evidently, these guys "behold" hypothermia and waterboarding (at least on paper), and -- unlike Senator McCain, who has actually beheld such horrors -- they are not shocked.

In the hands of the Administration, then, the McCain Amendment would be "a 'flexible' standard,'" which would, according to officials, "allow interrogators to weigh how urgently they felt they needed to extract information against the harshness of their techniques, instead of following rigid guidelines."

In other words, the Administration's mantra that its bill would bring "clarity" is exactly backwards. Under the current law -- Common Article 3's categorical prohibition on "cruel treatment and torture" -- the CIA techniques are plainly unlawful: That's why the "program" has been stopped.

(The notion that this standard is too vague for government work comes just a bit too late in the day. That standard has been binding on the United States and virtually every other nation on earth for more than 50 years. The Congress overwhelmingly attached criminal sanctions for its violation in 1997. These felony sanctions can be applied to any government officials anywhere in the world; and yet, as far as I know, during consideration of the 1997 amendment, and for the past nine years, there was until now not so much as a peep from anyone in any of the three branches of government, or in the literature, that there were any vagueness concerns with the incorporation of Common Article 3 into the WCA. In addition, for more than 50 years the U.S. armed forces have been operating under the Uniform Code of Military Justice, which similarly makes it a crime for a member of the armed forces to make threats or to engage in "cruelty toward, or oppression or maltreatment of, any person subject to his orders.")

But under the legal standard the Administration bill would substitute for this age-old proscription, "rigid guidelines" would be replaced with a context-dependent "flexible" standard. Jeff Smith gently calls this an "irony." As he writes: "The official did not try to explain how embracing such an inherently flexible standard would actually create clarity, the watchword of the administration's public campaign for its version of the bill."

For many decades, the U.S. armed forces very comfortably and effectively worked under broadly stated prohibitions (see above) and under very carefully prescribed rules for interrogation designed to comply with such legal limits. It was only in 2002, when the President declared such rules "flexible" and "context-dependent," that all hell broke loose at GTMO and in Iraq and Afghanistan.

If the President sincerely wanted "clarity" and "definite standards" for the CIA as well, as he professes, that would be quite a simple thing to accomplish: Akin to what the Pentagon has recently done in the Army Field Manual, Congress could simply specify in the statute that waterboarding, hypothermia, sleep deprivation, stress positions, and threats are categorically forbidden. What are the odds the White House would accede to such "clarity"?

[UPDATE: I had not previously noticed this terrific column by Dahlia Lithwick, which covers some of the same ground, such as that "while it sounds like Bush seeks to offer interrogators legal clarity, what he really strives to offer them is legal immunity," and that the fact the proposed Bush standard "is indeterminate for both the prospective torturers and their victims" is "precisely how the president wants it." Lithwick:

I suspect that the Bush administration doesn't seek to clarify the definition of torture so much as to confound it. The whole objective of defining, refining, and then redefining the rules has become an end in itself. It keeps our attention trained where the president wants it: on the assertion that old bans on torture don't work and that this conflict is unlike any conflict contemplated under existing international law. All this murk and confusion has begun to be the object of the game and not a casualty of it.

I once suggested in the context of presidential signing statements that legal obfuscation is enormously attractive to President Bush. It means all but the most highly credentialed law professors and government lawyers are constantly confused; it means subsequent legal claims that interrogators "did not know that the practices were unlawful" have real credibility. And perhaps, most importantly to this White House, it obscures where things have gone awry up and down the chain of command. One possibility, then, is that all these eleventh-hour redefinitions of torture are presidential attempts to "afford brutality the cloak of law," in the words of Supreme Court Justice Felix Frankfurter. But increasingly, it seems clear that its real purpose is simply to brutalize the law.
]

Comments:

Let me say at the outset that I am not a lawyer, and hence not as practiced at parsing the meaning of words and phrases. Even given this, however, I find it extremely difficult to understand exactly what the Bush Administration expects to gain by replacing the "cruel treatment and torture" wording of the Geneva Conventions with the "shocks the conscience" wording of the McCain amendment. Surely any act of cruel treatment or torture would also shock the conscience of any normal, moral human being. Can one really view hypothermia or waterboarding as cruel treatment or torture, and yet have one's conscience not be shocked? To believe that induced hypothermia or waterboarding violate the Geneva Conventions because they are cruel treatment or torture, yet are acceptable under a "shocks the conscience" standard just makes no sense to me. What is required in either case is an interpretive act that persuasively demonstrates that hypothermia or waterboarding are not "that serious", i.e., are not cruel treatment or torture, and hence do not shock the conscience.

If I am correct about this, the question arises as to why the Bush Administration has adopted its particular approach to these issues. Why not accept the Hamden decision, but then argue (if the question ever actually arises) that hypothermia and waterboarding simply are not cruel treatment or torture? To accept that they do constitute cruel treatment or torture (and hence would be punishable under the Geneva Conventions), but that they don't shock the conscience (and hence are not punishable under the new Bush standards), seems highly dubious to me. The real problem for the Bush Administration is convincing any normal, moral human being that such practices are not cruel treatment or torture, and hence that they do not shock the conscience. The current backlash among Republican Bush supporters demonstrates how difficult a proposition this is. The better approach for the Bush Administration would have been to accept the Geneva Conventions, but to push efforts to remove issues regarding violations of the Conventions from the purview of the Courts. Then it could claim that it follows the Conventions without anyone being able to demonstrate otherwise, which would just be a continuation of its present policy efforts.
 

Ed asks:

If I am correct about this, the question arises as to why the Bush Administration has adopted its particular approach to these issues.

To which the obvious answer would be: Because from Bush on down, they've already committed war crimes, and they know it. (That's why the interrogators are buying torture insurance, for pity's sake.)

What's more, they hope to introduce a sufficient level of obfuscation so that they can go on doing it. (That's preferable to any real clarity, because real clarity would lead to accountability, and real accountability would lead to war crimes trials.)

I don't see why this is so hard to understand. Just think of the administration as criminals who have the power to rewrite the laws, and everything falls into place.

I expect, if this goes through, we'll see retroactive legalization of everything that's gone on in the last 5 years as well, just as with the warrantless surveillance program.
 

''Ten years from now, when we have the whole story, we are going to be ashamed,'' he said. ''This is not us. This is not the way we do business. I don’t think in our history we’ve ever had a presidential involvement, a secretarial involvement, a vice-presidential involvement, an attorney-general’s involvement in telling our troops essentially, Carte blanche is the way you should feel. You should not have any qualms because this is a different kind of conflict.''

~ Lawrence Wilkerson, in his "cabal" speech

If congress does indeed "legalize" torture -- ["If congress doesn't legalize this illegal Program, it will end."] -- would it get past the Supremes? And if congress does not legalize torture, will this "Program" -- ala presidential signing statements -- truly end?

Presidentally authorized horror shops -- Abu Ghraib just one example of this entire obsenity.

Recall that the Pentagon is "investigating" more than (admittedly) 100 detainee deaths -- "Oops! Must have shoved the baton a little too far up Haji's a**!"

Note, too, that "Worried CIA Officers Buy Legal Insurance."

Staggeringly stunning that this even remains "debatable" -- that Bush & Co's advocacy of torture is buttressed by a significant measure of popular, political support!

["At first, we denied our culpability in the abominations of Abu Ghraib and elsewhere. But it polled well among a certain segment of voters! So now we're openly pitching our blood lust in prime time speeches to the nation, and viciously castigating those who 'don't have the stomach for it!'"]

Utterly obscene.
 

Marty, I'm hoping you can help clear up a few details:

- The White House is claiming that its proposal adopts the standards of the McCain amendment. But McCain's language in HR 2863 prohibits "cruel, inhuman or degrading treatment", which is specified to mean treatment prohibited by Amendments 5, 8 or 14. But the Administration's draft prohibits only acts "intended to inflict severe physical or mental pain or suffering". So, I'm confused about how the Administration's proposal has anything to do with the McCain's standards?

- Can you remind us how McCain's language, which doesn't mention the words "shocks the conscience", ends up with that precise meaning? Is this because the "shocks the conscience" test is how the 5th, 8th and 14th Amendments have come to be understood?

- You've argued that the specific goal of the Administration's proposal is to permit the CIA's "enhanced" interrogation techniques. The Administration's proposal prohibits the infliction of "severe physical or mental pain or suffering". Can you explain why the Administration could be confident that this allows hypothermia and stress positions?

- I understand that you surmise that the Geneva prohibitions on "humiliating" and "degrading" treatment are not actually the specific focus of the Administration's efforts. However, Tony Snow spent much of his press briefing two days ago insisting that the administration is not trying to *narrow* the Geneva Conventions, merely *clarify* them. But the most casual glance at the Administration's list of prohibited activities reveals that the protections against "degrading" and "humiliating" treatment have been jettisoned. Perhaps this is an important point simply to demonstrate that the White House is (surprise, surprise) being disingenuous?

Many thanks.
 

let me get this straight: you are saying that an al Qaeda terrorist should be entitled not to the same protections against coercive interrogations etc. but to greater protections? A thief who steals an ear of corn in, say, Wichita, cannot, under the Due Process Clause, be subjected to any treatment that "shocks the conscience." KSM cannot be treated in any way that is "degrading" even if the conduct in question falls short of shocking the conscience, right?

Aside for the grotesque absurdity of your preferred state of affairs, are you unaware that the Administration's position is consistent with nineteen years of American law and policy? If you bother to look at the US Declarations and Reservations to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment you'll see that the US has always interpreted prohibitions against "cruel, inhuman or degrading treatment or punishment" applying to conduct that is "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States," in other words (as applies to pretrial detainees), conduct that "shocks the conscience."

Lastly, your pious condemnation of "context-dependency" is just plain silly. The American people, no people in fact, will put up with a legal regime that disables them in conducting a war against a murderous enemy (which has zero regard for the laws of war) for the sake of letting law professors exhibit their delicate sensibilies and moral purity to the world.
 

One of the reasons that we are in this position is that the Executive has sought "flexibility". It is therefore ironic that there is such an effort in the Military Commission Bill of the President and the McCain-Warner-Graham to choose an American standard and to name specific types of offenses. The key here is Common Article 3 language as regards:

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

There is a reason why this is written this way. As is noted in the Commentary to Common Article 3.

"At one stage of the discussions, additions were considered -- with particular reference to the biological "experiments" carried out on detained persons. The idea was rightly abandoned, since biological experiments are among the acts covered by (a). Besides, it is always dangerous to try to go into too much detail -- especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible, and at the same time precise. The same is true of item (c)."
(My bold and underlining).

The effort of the drafters is to create a space in which bad things that would not pass muster under Common Article 3 standards can be done. We should not allow this to be American law. It shocks the conscience.
 

Has the Cheerleader-in-chief, who famously cited Jesus Christ as his favorite philosopher, asked, "Whom would Jesus waterboard?"
 

Again and again I find myself reading things that would likely never have come up if we had at the outset refuted the metaphorical concept of "war" as applied to bringing to justice those responsible for the attacks of September 11, 2001. Had we, as a nation, or even only as members of the literate class, rejected this fallacy we could have headed off all manner of outrage. It is not to late; it's just going to be a lot harder to undo what has been done than it would have been to prevent it in the first place.

Where do we start? First, by repudiating, as often and as publicly as possible, the fallacious reasoning by which we elevated the pursuit of the criminals responsible for the September 11, 2001 attacks into a "war." As I have said elsewhere, by the same reasoning we could have given the same powers to LBJ to fight the "war" on poverty---and then it might have been *his* legacy of abusing that erroneously granted power taking up all of our time.

Repudiate the fallacy of a "war" on terror, and then lets get down to the legitimate business of enforcing the laws, our own and and international, already on the books to punish murderers and conspirators. But so long as you accept, tacitly or explicitly, the claims that this is a "war" then you will forever be sinking time into lamentable issues such as what does and doesn't qualify as torture, or to whom we can and can't apply these methods, or who is and who isn't an "enemy combatant". This last worries me perhaps the most, as it seems increasingly likely that even acts of dissent such as questioning the legitimacy of the war metaphor will be construed by some as aiding the enemy. I have to take that risk, because, as I have also said, giving up our rights or liberties basically does the terrorists job for them.
 

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