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.
Posted 4:45 AM by Marty Lederman [link]