Here's the Administration's Cruel Treatment and Torture Authorization Act

Marty Lederman

This is the bill the Administration has sent up to Congress. Make no mistake, the most important action has little to do with military commissions (although that stuff is certainly significant, too). Instead, focus ought to be on sections 5 through 7 (pages 77-84), which are, as I predicted here, collectively an attempt to authorize the CIA to engage in the sorts of "enhanced" interrogation techniques -- e.g., hypothermia, threats of violence to the detainee and his family, prolonged sleep deprivation, "stress positions" and waterboarding -- to which the President alluded in his speech today, and to immunize such conduct from any judicial review. (The President's speech is much more candid than the face of the Administration bill. The President bascially concedes that the Hamdan decision stopped the CIA techniques in their tracks -- and that the object of the Administration bill is to authorize them anew.)

Although section 6 in effect says that the U.S. will "comply" with Common Article 3 of Geneva even if such techniques are used, that's wrong. These techniques are -- at least in many cases -- "cruel treatment and torture" prohibited by Common Article 3. Thus, this bill would in effect authorize the United States to breach its treaty obligations. Perhaps that's something we should do -- perhaps not.* But if so, we shouldn't pretend that we're not engaged in such cruelty and torture, and we shouldn't engage in the fiction that we are in compliance with the Geneva Conventions. The decision to authorize such horrifying techniques, and to thereby be the first nation to adopt breach of Geneva as official state policy, is a solemn one, and it should be treated with the seriousness that it deserves -- without euphemism or obfuscation.

*The thrust of the President's speech is that such techniques -- let's call them "torture light," since the President is so insistent that we never "torture" -- are absolutely necessary to preventing terrorist attacks. Apparently the Pentagon hasn't gotten the memo. At a briefing this morning, Army Deputy Chief of Staff for Intelligence John Kimmons forcefully argued that:

I am absolutely convinced [that] no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that. . . . Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there.

Some of our most significant successes on the battlefield have been -- in fact, I would say all of them, almost categorically all of them, have accrued from expert interrogators using mixtures of authorized humane interrogation practices in clever ways, that you would hope Americans would use them, to push the envelope within the bookends of legal, moral and ethical, now as further refined by this field manual.

We don't need abusive practices in there. Nothing good will come from them.

Posted 3:47 PM by Marty Lederman [link]