Balkinization  

Tuesday, September 26, 2006

Hate to Rain on the Torture Parade . . .

Marty Lederman

The Wall Street Journal and National Review, among others, are downright giddy with delight at the prospect that, because of the new "compromise" legislation, the CIA will be able to resume its so-called "alternative" interrogation techniques. On this view, no longer need the Journal editors "fear" that techniques such as stress positions, sleep deprivation, and temperature extremes "are a thing of the past."

Sorry, but not so fast.

For reasons I've explained, there are plenty of things horribly wrong with the draft legislation, and the most recent version revealed last night is even worse. Most importantly, the amended War Crimes Act will no longer criminalize all cases of "cruel treatment" prohibited by Common Article 3. (Indeed, as my colleague John Mikhail explains in an important post on the Georgetown Law Faculty site, the new War Crimes Act would even fail to criminalize all cases of torture that Common Article 3 prohibits.) And I fear that the Bush Administration will construe the constrained definitions in the War Crimes Act, together with the vast deference afforded the President to define "non-grave" breaches of Common Article 3, to authorize a resumption of the "alternative" techniques (indeed, numerous spokespersons, including the head of the CIA, have already suggested as much); and, what's worse, the bill will unconscionably attempt to insulate such Executive "interpretations" from any effective judicial and legislative review.

The Journal relishes the prospect that the White House will do just that:
It's a fair bet that waterboarding--or simulated drowning, the most controversial of the CIA's reported interrogation techniques--will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster. This is not about "torture" or even "abuse," as some Administration critics dishonestly charge, but about being able to make life uncomfortable for al Qaeda prisoners who have been trained to resist milder forms of interrogation.

The National Review, for its part, states expressly what is implied in the Journal editorial -- namely, that the President would be justified in doing so, because the compromise legislation would authorize the use of such techniques:
[T]he compromise legislation will define compliance with domestic-law obligations in such a way that the interrogation program can continue (with the apparent exception of water-boarding, a controversial but highly effective technique). It will also define U.S. compliance with international-law obligations under CA3, but only in terms of what would constitute "grave breaches" of it. Significantly, the definition of "grave breaches" is the same for the purposes of both domestic and international law. This is just as the president wanted: It means that if an interrogation is in compliance with domestic law, it is also in compliance with international law — thereby forestalling prosecutions in foreign and international tribunals.
There are several basic mistakes in this part of the NRO editorial.

For one thing, Common Article 3 establishes domestic, not merely "international law," obligations. As Justice Kennedy explained in Hamdan, it "is part of a treaty the United States has ratified and thus accepted as binding law." Indeed, Common Article 3 is part of the "supreme Law of the Land," per Article VI of the Constitution, and a President who takes his constitutional obligations seriously is bound to faithfully execute it-- not only as a matter of "international" law, but as a matter of U.S. law.

Nor would compliance with domestic law, such as this statute, foreclose prosecution in foreign and international tribunals for violation of the laws of war and the Geneva Conventions.

Most importantly, however, it is simply not the case that the bill would authorize the CIA "program" to continue, no matter how often the Administration might say otherwise.

To begin with, such techniques might, at least in some cases, constitute "cruel treatment" and "torture" even under the constrained definitions of those terms in the bill. I've already explained why I think those definitions are inadequate, but Senator McCain suggested on Sunday that on his reading of the language (apparently w/r/t "serious mental pain or suffering," in particular), some variants of the techniques would remain war crimes. Further legislative history might flesh out this possibility.

But even if the techniques are no longer deemed "war crimes," the amended War Crimes Act would not describe the sum total of "cruel treatment and torture" that Common Article 3 proscribes. Therefore the CIA techniques (some of them at least) would remain violations of CA3, even if they are not criminally enforceable.

Moreover, section 8(c) of the bill would actually re-enact the December 2005 McCain Amendment, which incorporates the due process "shocks the conscience" test. Senator McCain reportedly has expressed the view that that standard would prohibit at least some of the "alternative" techniques -- and he's almost surely correct, notwithstanding that the Administration has apparently (and secretly) concluded to the contrary.

The bill does not purport to supersede or override U.S. obligations under Common Article 3 -- everyone involved in the negotiations agrees on that much. And CA3 does prohibit the techniques. So, for that matter, does the "shocks the conscience" test of the McCain Amendment, fairly applied.

Thus, the conduct would remain unlawful, even if it is not covered by the War Crimes Act.

Of course, there's a very good chance that the lawyers in this Administration will conclude otherwise, by hook or by crook, because those in charge seem to have a very unorthodox view of what it means for the President to faithfully execute the law (see my discussion here). And the compromise bill unfortunately will provide them with the confidence to do so without significant fear that their implausible interpretations will ever be subject to review.

But then again, it might be years before there are further high-level detainees for whom the CIA techniques will be proposed. By that time, perhaps there will be different officials and lawyers making decisions in the Executive branch -- including those who are willing to construe the Geneva Conventions (and the McCain Amendment) faithfully. Or perhaps not. Only time will tell whether the U.S. will ever use Cold Cell, Long-Time Standing, and other forms of "cruel treatment" and torture, in violation of our treaty obligations.

So the folks over at the Wall Street Journal and the National Review might be advised not to pop their champagne corks just yet -- we might not know for awhile whether the Executive branch will authorize the CIA to breach the Geneva Conventions.

Comments:

I have a question here.
If treaties are domestic law too, isn't the House of Representatives irrelevant?
 

Professor Lederman:

The bill does not purport to supersede or override U.S. obligations under Common Article 3 -- everyone involved in the negotiations agrees on that much.

It is irrelevant what a few members of Congress spin on the talking head shows for political CYA. By its own language, the compromise bill clearly states that it defines what acts constitute breaches of Common Article 3 of the Geneva Conventions.

Given that the language details a list of exact definitions of prohibited conduct without any sort of catchall provision and expressly delegates to the President alone the power to add to this list of prohibited acts, basic statutory construction would find that Congress meant this list to be sum total of prohibited acts under Article 3.

And CA3 does prohibit the techniques.

CA3 uses completely subjective terms for which there are no objective definitions. Every single person here would have a different idea of what was and was not covered under the terms "torture" and "cruel treatment." Thus, you and everyone else are simply assuming that your own personal lists of prohibited acts are prohibited by CA3.
 

Bart writes: "By its own language, the compromise bill clearly states that it defines what acts constitute breaches of Common Article 3 of the Geneva Conventions."

No, it simply doesn't. Indeed, the fact that more is left for presidential determination means that the statutory determinations are *not* the be-all and end-all of CA3 obligations. As the bill says, they are, at most, only Congress's view of the "grave" breaches.

Bart also writes: "Every single person here would have a different idea of what was and was not covered under the terms 'torture' and 'cruel treatment.'"

Perhaps. Perhaps there would be some ambiguity at the margins, as with any legal standard. But that's really neither here nor there for present purposes, because these are easy cases. Could anyone -- Bart included -- sincerely contend with a straight face that the states that signed Geneva would not have intended Cold Cell, Long-Time-Standing, waterboarding, stress positions, extended sleep deprivation and threats to family *not* to fall within the category of "cruel treatment"? To ask the question is to answer it. Indeed, the only really close question is whether and when those techniques go beyond "cruel treatment" to constitute "torture."
 

Professor Lederman:

Bart writes: "By its own language, the compromise bill clearly states that it defines what acts constitute breaches of Common Article 3 of the Geneva Conventions."

No, it simply doesn't. Indeed, the fact that more is left for presidential determination means that the statutory determinations are *not* the be-all and end-all of CA3 obligations. As the bill says, they are, at most, only Congress's view of the "grave" breaches.


Congress' view in this matter is dispositive. Art. I, Sec. 8(11) of the Constitution expressly gives Congress the power to "make Rules concerning Captures."

In Section 5 of the proposed legislation, Congress exerted this power over the Courts by removing jurisdiction over law suits asking the Courts to interpret the Geneva Conventions.

Moreover, Section 6 is entitled "Implementation of Treaty Obligations."

Section 6(a)(1) goes on to state that the acts enumerated under this legislation "constitute violations of common Article 3 of the Geneva Conventions prohibited by United States Law"

Section 6(a)(2) needs to be quoted in its entirety as Congress' express preemption of all other interpretations of the Article 3 outside of this legislation:

PROHIBITION ON GRAVE BREACHES.—The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.

The combination of these provisions demonstrate Congress' clear intent to preempt all other enforcement of the Geneva Conventions apart from that allowed in Section 6 of this legislation.
 

I have one question for Prof Lederman. I have yet to see him address it in any post of his and I would very much appreciate the answer if he has itme. It is not adifficult question
;

What interrogation procedures are ok with you? All we see is you criticizingthe administration but you never offer an alternative set of tactics. Lets assume that KSM was ccaptured or lets say the US captures Zawahiri or some otheAQ big shot.

How would YOU interrogate him? What tactics would be acceptable to you? Lay out how it would go.

Let's say he syas, "I;m not telling you anything and I'm waiting for my lawyer". Is that the end of it? Should we just say ok.

I have yet to see on eliberal explain how terrorists should be interrogated and how we should get information from them. How would you o it? What's acceptable to you? And if he says "I'm not telling you anything" after you've played by CA3 rules and Geneva rules, then what?

Please, enough criticizing Bush. How would you go about it?

i eagerly await your answer
 

Bart: Section 6 says nothing of the sort. You're reading from the old White House draft that has been off the table for a couple of weeks now.
 

Post a Comment

Home