Balkinization  

Saturday, September 23, 2006

Oh, Well, That Explains It

Marty Lederman

Courtesy of the New York Times, here's your very own handy-dandy pocket-sized flow chart for understanding what the "compromise" legislation would, and would not, prohibit.

And now, just for kicks, compare that to this alternative description of what the law forbids:

"[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [detainees]: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."

Which statement of the law is more "vague" and ambiguous?

Which gives the CIA more "guidance"?

Which is more informative on the question of whether it's lawful to leave a prisoner to stand naked in a cell kept near 50 degrees, during which time he is doused with cold water, or to force a prisoner to stand, handcuffed and with his feet shackled to an eye bolt in the floor, for more than 40 hours?

WWOS? (What would Orwell say?)

Comments:

One possible approach the Democrats might take in addressing this proposed legislation is to "agree" 110% with the President, i.e.:

Step 1: "We agree that the prohibited acts should be clearly defined so that our personnel in the field will know exactly what is allowed and what is not; we are going to study this proposed legislation carefully to ensure the language is clear and is complete compliance with the Geneva Convention."

Step 2: "We are continuing to study this legislation to ensure that ..."

Step 3: "After careful consideration, we are not certain that ... and we are going to continue studying this proposed legislation to find ways it can be made more clear so that our personnel in the field ..."

Step 4: "We believe the proposed legislation needs to be amended to ... We also believe Court review is fundamental to ensuring the meaning is clear and therefore ..."; etc.

In other words, use the President's own rhetoric about "clarity" to ensure the bill will comply with the Geneva Conventions.
 

Professor Lederman:

And now, just for kicks, compare that to this alternative description of what the law forbids:

"[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [detainees]: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."

Which statement of the law is more "vague" and ambiguous?

Which gives the CIA more "guidance"?

Which is more informative on the question of whether it's lawful to leave a prisoner to stand naked in a cell kept near 50 degrees, during which time he is doused with cold water, or to force a prisoner to stand, handcuffed and with his feet shackled to an eye bolt in the floor, for more than 40 hours?


C'mon now. You may not like the definitions of cruel treatment and torture in the proposed legislation, but at least the proposed legislation has defintions which Article 3 lacks.

Under the proposed legislation defining torture and cruel treatment as the intentional infliction of severe pain, making the target cold or uncomfortable pretty clearly does not meet that definition.

However, under Article 3, what is torture or cruel is in the eye of the beholder and there is no universal accepted definition. Even though both of us are operating in good faith, I am certain that you would find the above techniques to be torture while I would not. Without definitions, Article 3 is essentially void for vagueness.
 

Torture-commissions, wiretap, searchstring keyword searches; decreased checks and balances; congress has an opportunity now to debate two more of these.

The RedCross is bound by secrecy, as a precondition for access. Evidence is going to have to come from elsewhere in the torture debates. I thought of asking input from the American Psychiatric Assoc to interpret cause and effect in the NY Times pocket guide to abuse of prisoners; yet, doubtless, these kinds of considerations are sought in the defense department as part of its torture design menu, to understand risks and set bounds. Still, it would be an interesting symposium, a study in contrasts; and a utilitarian set of PPoint slides.
 

ySorry, Mr. Depalma, but Article 3 only became "vague" when the President, after deciding to torture people, needed some new fabulously confusing crap to bumfuzzle the general public with and save his own butt.
 

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