an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Senator McCain's Understanding of His Own "Compromise" Legislation
From today's Face the Nation. A decidedly mixed bag. I've included some marginal notations, but not, for the most part, with respect to McCain's central assertions and characterizations -- which, at least for the time being, will have to speak for themselves:
Mr. [John] HARRIS [Washington Post National Political Editor]:
Senator, can we go to your agreement with the administration this week . . .
Sen. McCAIN: Sure. Sure.
Mr. HARRIS: ...on the law regarding torture?
Sen. McCAIN: Sure. Sure.
Mr. HARRIS: This whole debate turned on things that I think most citizens couldn't understand. You said you--severe punishment, pain should not be inflicted, but serious pain can--what can that possibly mean in concrete terms?
Sen. McCAIN: In concrete terms, it could mean that waterboarding and other extreme measures such as extreme deprivation--sleep deprivation, hypothermia and others would be not allowed.
Mr. HARRIS: That's what you say. What if the administration interprets it differently, as it is allowed to do under the provisions of this law? What if you disagree with the interpretation?
Sen. McCAIN: If we disagree with the interpretation, the fact is that those interpretations have to be published in the Federal Register. [MSL Note: As I read the bill, nothing would require the President to do so, especially if he thinks that the bill itself has already provided a definition, e.g., with respect to "cruel treatment."] That's a document that's available to all Americans, including the press. And we in Congress, and the judiciary, if challenged, have the ability then to examine that interpretation and act legislatively. These are regulations the president would issue, we would be passing laws which trump regulations. [MSL Note: Congress would have to muster veto-proof majorities in both houses.]
Mr. HARRIS: If you have confidence that those were--tactics were disallowed, why didn't you get it in the--in the actual law?
Sen. McCAIN: What we did, John, was we called--outlawed certain procedures, including some of those that you might think would be natural--murder, rape, etc.--but also cruel and inhuman--we included cruel and inhuman treatments, not as severe as torture but could still be considered a crime.
[Bob] SCHIEFFER: Well, we look at...
Sen. McCAIN: I'm confident that some of the abuses that were reportedly committed in the past will be prohibited in the future.
SCHIEFFER: Well, for example, will this prohibit making people stand up for long periods of time? Because I know in your captivity--what?--you were once made to stand up for two days, or something?
Sen. McCAIN: Yeah. It's hard for me to get into these techniques. First of all, I'm not privy to them, but I only know what I've seen in public reporting. But some of these, such as an extreme stress position and extreme application of that I think would be--would be certainly important. But we also put in that if they're employed to the extent they cause serious physical or mental pain and suffering, but even if that is not prolonged. In other words you could do something almost instantaneously and that would still be prohibited under the, quote...
SCHIEFFER: What does "prolonged" mean?
Sen. McCAIN: Well, like the sleep thing you just mentioned, like standing, like--exposed to cold temperature to the danger that serious injury could, mental or serious--or physical injury could result. Look, we couldn't outline everything that should be done. We tried to outline what couldn't be done under the War Crimes Act, leaving the Geneva Conventions alone, which was our first and utmost priority. [MSL Note: This is the suggestion that "cruel treatment" under the War Crimes Act would not encompass all "cruel treatment" prohibited by Article 3(1)(a) of the Geneva Conventions.]
Look, [the] ACLU and the New York Times don't like the agreement, but we think this will recognize, people will recognize that it defends both our values and our security. Some want the CIA not to be able to carry out this program. That was never our intent. And--but it was--it's very important that we have this tool to collect intelligence.
Mr. HARRIS: What gives you the confidence? The last time you reached an agreement, it was in law, the administration signed it, and then put out a signing statement saying it was going to interpret it its own way. Did you have confidence as you were negotiating with the administration, and are you also confident that this outlaws torture?
Sen. McCAIN: That Detainee Treatment Act, they did have--put that signing statement in, but it's--they have never violated it to my knowledge, and we would challenge it if they did. [MSL Note: Huh?] And second of all, part of this agreement is adherence to the act that we passed, the Detainee Treatment Act. So, look, I believe the administration acted in good faith. We all understand the need to collect intelligence and we know how important it is. But we also ought to recognize that...
Mr. HARRIS: Do the tactics work?
Sen. McCAIN: Well, that's--I was just going to say. Thanks, John.
Mr. HARRIS: Because the administration said these tactics work. Do they?
Sen. McCAIN: I think that they work to an extent, but I also think that we have to be very careful, because we already have numerous examples where, if you torture somebody, they'll tell you anything that you want to know. Ask the British in Northern Ireland. Ask the French in Algeria. Ask the Israelis. So you've got to be very careful about the--about these abuses.
Mr. HARRIS: Well, you have access to more information about this than any of us because you've been in the negotiations.
Sen. McCAIN: No, actually I...
Mr. HARRIS: What works?
Sen. McCAIN: No. What do you mean? They're going to...
Mr. HARRIS: You know of specific instances where these tactics have produced valuable information. And...
Sen. McCAIN: Only what the president talked about in his speech, and there has been, everyone agrees, there has been some valuable information gained. Exactly what techniques were used in obtaining that, I certainly don't know. [MSL Note: So even McCain doesn't know what he was negotiating about . . . .]
SCHIEFFER: Senator McCain...
Sen. McCAIN: But it's clear we have to have the moral high ground and we cannot violate the Geneva Conventions, which we've adhered to for 57 years. And we will not.
SCHIEFFER: Well, that just leads to my question. Should the administration and the CIA close these secret prisons?
Sen. McCAIN: I--that's not for me to say. But I--but I do believe that we have to be careful about our image in the world. But we also have to balance that with the ability to win this war on terror. And gathering of intelligence is a very important tool. The administration makes a very strong case, and I don't question it, that the interrogation of a couple of these high-value--and remember, these are the worst people in the world and we all know that--that has--gave them valuable information in thwarting attacks on the United States of America. [MSL Note: The draft legislation is in no way limited to interrogation of "high-level" detainees, or any other category, for that matter.]
I take them at their word. But we also have to remember that if we have our men, young people, captured, say a CIA agent in Iran, and we--if the Iranians decide to interpret the Geneva Conventions, then obviously that would put our young peoples' lives in danger. That's why we didn't touch the Geneva Conventions. Posted
by Marty Lederman [link]
Based on this transcript, they didn't ask McCain whether, assuming for the sake of argument that the "compromise" limits the president's right to torture, that limit is illusory without habeas corpus. Or whether McCain is concerned about innocent people who will be imprisoned indefinitely. The mainstream media is worthless, and McCain is evil.
"That's why we didn't touch the Geneva Conventions." Literally true. Instead the proposal is to modify US substantive law that implements parts of the Conventions. All the players count on the people not reading the proposed language (and if they read it, not understanding it) - and that is a well placed "gamble." The "we listed the offenses" gambit is a canard. All the proposals have, from the start, listed the offenses. The difference lies elsewhere. Unfortunately, human nature being what it is, the higher the stakes, the greater the obfuscation. I don't expect our government or press to conduct anything remotely resembling an honest debate on this subject. Did Senator Specter show up on CNN? He and Leahy (and Levin) are the ones carrying the habeas torch.
Quoting McCain: ------ If we disagree with the [administration's] interpretation, the fact is that those interpretations have to be published in the Federal Register.... And we in Congress, and the judiciary, if challenged, have the ability then to examine that interpretation and act legislatively. ------
McCain either doesn't understand his own bill, or is actively attempting to deceive us. The bill explicitly (and probably unconstitutionally) attempts to bar the judiciary from interpreting the Geneva Conventions. This bar, in turn, prevents the judiciary from determining whether the administration's interpretation of the bill is proper, since the bill's stated purpose is to implement (or, in the administration's words, "clarify") Geneva.
In any intellectual sense, this bill is only an exercise in postmodern twaddle. But postmodern twaddle with a point, which is political and obvious enough that I don't need to state it.
"The bill explicitly (and probably unconstitutionally) attempts to bar the judiciary from interpreting the Geneva Conventions."
I think the direct prohibition in the bill is against a plaintiff using the GC as the basis for a claim against the government. It doesn't prohibit a court from prosecuting a war crimes violation brought by the government - there have been some prosecutions, and if they touch on the War Crimes Act, they have a good chance of bumping into interpretation of the GC.
I haven't studied the proposed law from the perspective of the rights of action granted to detainees and "subjects of interrogation," except to notice that the court stripping provision that Specter objected to last November is back, in spades, in this proposal.
Quoting cboldt: ------ "The bill explicitly (and probably unconstitutionally) attempts to bar the judiciary from interpreting the Geneva Conventions."
I think the direct prohibition in the bill is against a plaintiff using the GC as the basis for a claim against the government. It doesn't prohibit a court from prosecuting a war crimes violation brought by the government - there have been some prosecutions, and if they touch on the War Crimes Act, they have a good chance of bumping into interpretation of the GC. ------
The prohibition applies, by its terms, to "invok[ing] the Geneva Conventions" as "a source of rights" in "any habeas or civil action or proceeding" against the U.S. government or its agents. This would seem to prohibit not only a party from raising the GC as a core claim in a habeas case, but a court from interpreting the GC in a habeas case brought on other grounds -- such as for violation of the prohibitions of McCain's bill.
It does seem that the jurisdiction provision would still permit parties to invoke Geneva in a criminal case, but, of course, the executive controls the selection of criminal cases, and is hardly going to prosecute itself for violating it. I wonder, though, whether a *state* attorney general might successfully charge a CIA agent for conspiracy to commit torture under the bill's section d(1). Does some general principle of intergovernmental immunity cover this?
"What we did, John, was we called--outlawed certain procedures, including some of those that you might think would be natural--murder, rape, etc.--but also cruel and inhuman--we included cruel and inhuman treatments, not as severe as torture but could still be considered a crime."
Cruel and inhuman treatments are already illegal. What exactly does McCain think the DTA was supposed to do?
The CNN transcript is up, and Specter did discuss the habeas issue briefly. He seems to give McCain and Warner a pass on the interrogations aspect (bah), but insists that the habeas parts must be changed.
I have no knowledge regarding the question of a state AG bringing a charge of war crimes violation against a federal actor - my first reaction is that it can't happen, but my first reaction is often wrong.
I also haven't parsed the proposed statute for the possibility that War Crimes Act violations themselves be the basis for a private cause of action, but I think it is written so they are not.
"...if the Iranians decide to interpret the Geneva Conventions, then obviously that would put our young peoples' lives in danger."
(3)INTERPRETATION BY THE PRESIDENT. (A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.
McCain: ------ "...if the Iranians decide to interpret the Geneva Conventions, then obviously that would put our young peoples' lives in danger." ------
And why shouldn't they? His bill fools only the subspecies of American voter that wants to hear soothing fictions instead of hard realites. It does not fool our enemies, our potential enemies, or our allies.
"I take them at their word. But we also have to remember that if we have our men, young people, captured, say a CIA agent in Iran, and we--if the Iranians decide to interpret the Geneva Conventions, then obviously that would put our young peoples' lives in danger."
Would the Geneva Conventions apply here anyway? We're not, as yet, in conflict with Iran. We don't apply the Geneva Conventions to Russian or Chinese spies that we capture (or set up, as with Wen Ho Lee), do we?
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