Balkinization  

Friday, September 22, 2006

Three of the Most Significant Problems with the "Compromise"

Marty Lederman

Here's the Agreement Upon Common Article 3. And here's the Agreements on Classified Information, Self Incrimination and Coercion, and Hearsay, in military commission trials. Here's the bill as introduced.

These are probably the most significant problems with the "Agreement Upon Common Article 3" [I've switched the order because there's been some confusion about the important "cruel treatment" definition, and anyway, it's the question of the day]:

1. Perhaps most importantly for purposes of U.S. compliance with our treaty obligations, the "compromise" bill would appear to provide a unjustifiably narrow interpretation of the "cruel treatment" that is prohibited under subsection (1)(a) of Common Article 3.

To be sure, section 8 of the bill would purport to establish "cruel or inhuman treatment" as a "grave breach" of Common Article 3. So far, so good. And such treatment would be defined as "[t]he act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control." This is contestable, but not necessarily objectionable in and of itself.

The bit about severe physical or mental pain or suffering merely tracks what is already prohibited under the U.S. torture law. And we have good reason to believe that the Administration has construed that prohibition not to foreclose the use of Long Time Standing, Cold Cell, threats, other stress positions and sleep deprivation, and even waterboarding. Therefore, that part of the definition doesn't accomplish much, if anything.

So if this definition is going to do any independent work at all, it would have to be with respect to what it calls "serious physical or mental pain or suffering." But do the definitions of that phrase cover any or all of the "alternative" CIA techniques? More importantly, do they cover all "cruel treatment" under Common Article 3?

I'm afraid that they won't.

The bill would define ˜serious mental pain or suffering" to be basically coterminous with the term ˜severe mental pain or suffering" under the torture act, except that as to conduct occurring after this law is enacted, the definition would cover conduct not only intended to result in "prolonged mental harm" (as is the case under the torture statute), but also conduct intended to result in "serious and non-transitory mental harm (which need not be prolonged)." What does it mean for "serious" mental harm to be non-transitory but also non-prolonged? The bill does not say. Between transitory and prolonged falls . . . the shadow.

More important is the bill's definition of ˜serious physical pain or suffering." One would think that, on any reasonable understanding of ordinary language, the "alternative" CIA techniques do, indeed, result in serious physical suffering, at the very least. Indeed, such serious suffering -- and the prospect of ending such suffering by telling one's interrogators what they wish to hear -- is the whole point of using such techniques in the first place. But remarkably -- and not accidently -- the bill's definition would not cover all such actual "serious physical suffering."

The definition would require, for one thing, a "bodily injury" -- something that would not necessarily result from use of the CIA techniques -- even though one can of course be subject to great physical suffering without any "physical injury."

What's worse, such physical injury would also have to "involve" at least one of the following:

(1) a substantial risk of death;

(2) extreme physical pain;

(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

As you can see, this definition simply does not cover many categories of actual serious physcial suffering, including, naturally, the physical suffering that ordinarily results from the CIA techniques that have been reported.

The result, unfortunately, is a very constrained conception of what constitutes "cruel treatment" -- a much narrower conception than a fair or reasonable interpretation of Geneva Article 3(1)(a) would provide. And therefore the bill would appear to exclude from the definition of "cruel treatment" many cases of actual cruel treatment prohibited by Common Article 3. And when that occurs, it is likely the Executive will construe the statute -- and Common Article 3, as well -- to permit some forms of cruel treatment that Geneva in fact proscribes, i.e., the "alternative" CIA techniques. Indeed, it's happened already: The ink was hardly dry on the draft when numerous Administration spokespersons were gleefully informing the press that the bill is a green light to the CIA to reinstitute the "alternative" techniques that Hamdan had effectively interdicted. Byron York has gone so far as to relate that "both sides appear to believe that the agreement permits the CIA to continue to use sleep deprivation, cold rooms, and other such techniques," even though such techniques do, in fact, constitue a breach of our Geneva obligations.

Here's how Rosa Brooks starkly makes the point:
Take any of the "alternative" methods that Bush wants to use on U.S. detainees and imagine someone using those methods on your son or daughter. If the bad guys captured your son and tossed him, naked, into a cell kept at a temperature just slightly higher than an average refrigerator, then repeatedly doused him with ice water to induce hypothermia, would that be OK? What if they shackled him to a wall for days so he couldn't sit or lie down without hanging his whole body weight on his arms? What if they threatened to rape and kill his wife, or pretended they were burying him alive? What if they did all these things by turns? Would you have any problem deciding that these methods are cruel?
Of course you wouldn't, because they are obviously "cruel treatment," covered by Common Article 3. But under the "compromise" bill, those techniques would appear to fall outside the category of cruel treatment on the somewhat ridiculous premise that they do not necessarily result in serious physical suffering! -- at least, that is, if the CIA can either avoid infliction of physical injury or avoid "extreme physical pain" or the other serious consequences enumerated.

Worse yet, this definition might also have an important and very unfortunate impact on the understanding of similar terms under the federal torture statute. If, as this bill would appear to provide, techniques such as Cold Cell and Long Time Standing (and perhaps even waterboarding) would not result even in serious physical pain or suffering, wouldn't it logically follow that such techniques also do not result in the severe physical pain or suffering (presumably a higher bar) that triggers the torture prohibition?

If so, then this legislation might also serve to provide post-hoc legislative "buy-in" to the Bush Administration's unduly narrow reading of the torture statute.

As if it weren't bad enough already . . .

If Senators McCain, et al., are truly serious about bringing a halt to interrogation techniques that would place us in violation of the Geneva Conventions, then at the very least they must do this one thing: Amend the definition of "serious physical pain or suffering" to make certain that it does, in fact, encompass the physical suffering that is attendant to the cruel treatment prohibited by Common Article 3, including that caused by the CIA's "alternative" techniques.


2. Another huge problem remains section 6 (in both of the underlying draft bills), which presumably will "overrule" Rasul, by purporting to strip aliens detained overseas of the right to petition for habeas review, and to drastically limit any further rights of such aliens to seek judicial review of (i) the legality of their detention; (ii) the terms and conditions of their detention and interrogation; and (iii) the proceudres and results of any military commission trial. Jack and others have thoroughly explained why this section is so troubling. Suffice it to say that without effective judicial review, the Executive branch will go virtually unchecked, and will therefore feel free to push up against, and perhaps beyond, the limits of the substantive rules established in this law, in treaties, and in other laws.

There will undoubtedly be constitutional challenges to section 6, including pursuant to the Suspension Clause and, possibly, the Due Process Clause.

3. Equally alarming is section 7 of the "compromise" bill, which would purport to prevent any person -- alien or citizen, overseas or in the U.S. -- from so much as invoking the Geneva Conventions -- any provision in any of those Conventions -- "in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a
party, as a source of rights, in any court of the United States or its
States or territories."

Apparently, this not only would foreclose the possibility of a private cause of action under Geneva -- even solely for injunctive or declaratory relief -- but, more ominously, would also prevent any litigant from so much as raising Geneva as a ground for relief in any properly filed lawsuit . . . even when, as in Hamdan, one or more provisions of Geneva determine the scope and effect of federal statutory law.

What this means, in effect, is that the President's interpretation and application of the Geneva Conventions will be virtually unreviewable, no matter who the affected parties may be, in this and other armed conflicts, now and in the future . . . across the board.

Again, we should expect constitutional challenges to this provision, both under the contested and somewhat cryptic holding in U.S. v. Klein (because this provision would in effect prevent courts from construing the law that is germane to the proper exercise of their jurisdiction), and perhaps also under the First Amendment (cf. Legal Services v. Velazquez), because the provision would quite literally prevent litigants from bringing to courts' attention the law that is relevant to the substantive questions at issue in a particular case.

(NOTE: I do not mean to be suggesting anything about the prospects of these or other constitutional challenges. I have not yet thought through the various arguments.)


* * * *

Once more, I should stress that these are merely my initial understandings of this deliberately obscure and obfuscatory legislation. Perhaps I'm wrong, or I'm missing something big. Perhaps Human Rights First is correct that the bill "makes clear that ‘alternative interrogation procedures’ such as stress positions, induced hypothermia and waterboarding are not only prohibited by the treaty, they are war crimes." I sure hope so. Therefore I would be very grateful, and relieved, to be proven wrong in this or other respects. So please write me with any comments and corrections.

Comments:

One additional avenue of attack on these provisions would seem to be at least theoretically possible. Perhaps it's time to re-think the "later in time" rule for resolving conflicts between treaties and statutes under the Supremacy Clause.

The international tax community has done a fair amount of grumbling over the years over revisions to the Internal Revenue Code that appeared to contravene the United States' obligations under one or more bilateral income tax treaties. However, no straight-forward challenge ever emerged.

Perhaps now that the stakes will be more than merely monetary, someone will perceive themselves as having a reason to challenge this particlar piece of conventional wisdom.
 

Given Marty's analysis, and having worked through the onion layers of definitions myself, I now understand how this compromise likely excludes from the sanctions of the War Crimes Act several harsh physical techniques such as induced hypothermia and enforced standing.

In the context of the negotiation, did not the original Warner-McCain-Graham standard have a similar effect? (See Marty's comments about that bill here.)

I do see that the new language, once the definitions are traced back to such dependencies as actual or threatened "bodily injury," allows such things more explicitly without triggering the War Crimes Act. But does anyone really think these negotiations were about whether or not we actually would criminalize such acts?

Graham in particular has always talked about protecting officers from prosecution.

With respect to cruel treatment short of "torture," both the original administration bill and the original Warner-McCain-Graham bill depended on general standards articulated in the 2005 McCain amendment, which in turn rest on the "shocks the conscience" criterion, which OLC apparently has interpreted expansively.

It seems to me that the only stake that Warner, McCain and Graham actually put in the ground was that the standards of Geneva itself should not be reinterpreted. That is a more abstract legal issue, on which they did prevail.

The question of defining criminal violations in the U.S. War Crimes Act has always been a different question. This act did not even exist before 1996, right?
 

All of this can't be good, but it seems like something obvious is being missed: What about extraordinary renditioning?
 

the architects of these "standards" ought to be FORCED to create "OK" and "NOT OK" lists, down to specific acts and techniques... that is the ONLY way anyone will ever be held accountable... this intentionally vague language is worthless for preventing torture...
 

I long for the good old days. Surely the CIA always tortured prisoners, but we never new about. And if they got caught oh well your on your own. (Re The Unit)
I truly feel this administration Fuc== up everything it touches.
The can't shoot staight gang right out of HELL.
 

JaO,

Only the McCain bill would have amended the so-called "shocks the conscience" language to the War Crimes Act. That would at least allow the courts to pass judgement on whether those words cover Cold Rooms (assuming a criminal prosecution was conducted).

Although the compromise bill does not explicitly alter Geneva, I would not call that a victory. Unlike the McCain bill, the President can alter Geneva and the courts cannot weigh in.

Finally, there is a good faith argument that sometimes we should not follow a strict interpretation of Geneva. It may be worth it to expose our own non-uniformed agents to similar measures if we use rought treatment only when many people (oversight) agree it is justified in the name of uncovering an attack.
 

(other than pain or suffering incidental to lawful sanctions)

Yeah. As I suspected.

They can't beat a confession out of the suspect, but if they "have to use force" to "ensure prisoner compliance", as a "lawful sanction", well... they just told the detainee to stand for 24 hours; the beatings were because the detainee wouldn't follow orders, not part of the interrogation.
 

Isn't this all just sashaying around the question of exactly how much torture is indeed "torture"?

You know, I don't like peeking in other people's bedrooms, and I really don't want to know exactly how much inhumane treatment would "shock [their] conscience". I think that should be legally irrelevant on any free but civilised society.

Cheers,
 

Foreclosing a private right of action is perfectly legitimite. Many, many laws that are designed to protect people do not allow for a private right of action by those people. The exclusive remedy for "protection" is congressional review or independent suit by an independent counsel of the executive branch or regulatory agency. This is not new at all. Furthermore, the Geneva Conventions do not require it, nor does the US Constitution. Allowing private lawsuits against the Government is strictly the privilege of Congress, which appropriately declined to allow al-Qaeda to sue the Government. This is entirely an appropriate policy choice by the Congress.
 

First of all,

All the stuff Rosa Brooks mentioned ALREADY has happened to our gusya nd has been happening for years.

Ask John McCain what happened to him and his buddies in Nam. WHat do you thin khappened to the hostages in Lebanon and the US Embassy in Tehran. To US prisoners of the Chinese and NoKors in Korea. To the guys captured during the Gulf War. The Geneva Conventions have NEVER protected out guys in the past an dit's foolish to think the ywill in the future.

Further,

all those things are things we ALREADY do to our own guys during training exercises. Please to think that cold rooms, standing up, slapping and the like is torture is absurd.

Torture is when the Egyptians hook you up to the rack and stick cattle prods on your testicles. It's when drops sulfuric acid on you,. It's what they do in Jordan, Syria, China, etc... And if we did it I'd be perfectly fine with it.

Here's one question liberals never answer. How do YOU propose to get information. And based on the Brian Ross ABC report and other rep[orts, the current tactics HAVE worked. KSM spilled the beans. Abu Zubaydah and BinAlshibh and others gave it up. Not everything they said turned out, but a lot of it did and we have repaed the benfits and saved lives.

Let's say you've captured KSM. You know he knows things. What do YOU do? Do you just ask him nicely and if se says no, then that's it. You can just ask him his name, his age and his serial number? You have to give him a lawyer?

WHat is the liberal startegy for interrogation and how will it work?
 

Here's how Rosa Brooks starkly makes the point:

Take any of the "alternative" methods that Bush wants to use on U.S. detainees and imagine someone using those methods on your son or daughter. If the bad guys captured your son and tossed him, naked, into a cell kept at a temperature just slightly higher than an average refrigerator, then repeatedly doused him with ice water to induce hypothermia, would that be OK? What if they shackled him to a wall for days so he couldn't sit or lie down without hanging his whole body weight on his arms? What if they threatened to rape and kill his wife, or pretended they were burying him alive? What if they did all these things by turns? Would you have any problem deciding that these methods are cruel?


To start, many of the techniques referred to above are not legal under the compromise definitions of grave violations of the Geneva Conventions. Let us stick to the subject at hand without red herrings muddying up the discussion.

Instead, let use as an example the most severe coercive interrogation technique approved by the government - water boarding.

The definition of torture being adopted in this proposed legislation is nearly identical to the amended definition of torture to which the US agreed to in the Torture Convention - the intentional infliction of severe pain.

Although this has been the subject of debate, I cannot see how the panic inflicted by water boarding is the equivalent of severe pain. Therefore, despite Senator McCain's protestations to the contrary, let us assume that water boarding does not fit under the proposed definition of torture under this agreement.

Now, let us reframe the question in context.

Unless your son or daughter is a foreign all Qaeda terrorist in the business of murdering our citizens, then that comparison is inapposite. Different persons have different rights.

We grant our citizens, not foreign enemy combatants, constitutional rights. Historically, enemy combatants fighting in civilian clothing were summarily executed on the battlefield. There were never trials. Due process consisted of a battlefield determination that the subject was in fact an enemy combatant rather than a civilian.

With all of this in mind, I would pose the following question to American voters:

The interrogation technique of water boarding simulates the sensation of drowning and causes severe panic in the people subject to this technique. However, it has also been used successfully to force al Qaeda leaders like Khalid Sheik Muhammad to disclose the identity or several other al Qaeda leaders and to disclose several future plots to commit the mass murder of American citizens.

Should Congress ban the technique of water boarding as too cruel to be used to interrogate captured al Qaeda detainees captured in the future?


Do you want to guess what percentage of voters would answer "yes" to that question?

The definition of torture is largely in the mind of the beholder and, in the end, is a policy decision to be made by our elected representatives. After a review of the rules laid out in this compromise, I can say with confidence that these interrogation limits are far more restrictive than those the average American would permit.
 

Foreclosing a private right of action is perfectly legitimite. Many, many laws that are designed to protect people do not allow for a private right of action by those people. The exclusive remedy for "protection" is congressional review or independent suit by an independent counsel of the executive branch or regulatory agency. This is not new at all. Furthermore, the Geneva Conventions do not require it, nor does the US Constitution.

The UN Convention Against Torture, signed by President Reagan, does require that signatories permit a private right of action:

"Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Each State Party shall ensure in its legal system that the victim of any act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation."

Allowing private lawsuits against the Government is strictly the privilege of Congress, which appropriately declined to allow al-Qaeda to sue the Government.

This is an uncommonly silly statement. Nobody has suggested that "Al Qaeda" has any right of action. Victims of torture, on the other hand, SHOULD have such a right.

In light of your post, you might want to change your posting name to something more appropriate. I suggest "Madame Dufarge".
 

Bart,

There may be consensus (see here and here) that while waterboarding is not torture, it is Cruel or Inhuman Treatment that would be prohibited when this compromise amends the War Crimes Act.
 

The more interesting legal question about waterboarding is not whether it is "torture," as Bart's strawman suggests, but whether it is "cruel or inhuman treatment" -- torture-lite, in the vernacular.

Of the various torture-lite practices reported to occur, waterboarding seems to be a practice that arguably does fall under the compromise definition. There are persistent reports that McCain believes that it does.

But other practices -- including wrist-shackling a prisoner in a stressed, standing position for 40 hours, or inducing hypothermia by holding a naked prisoner in a frigid cell and dousing him with cold water -- seem likely not to be covered even as "cruel or inhuman treatment" under the compromise definitions.
 

Where does the section 8 (c), prohibition against cruel, inhuman and degrading treatment, fit in this? It is not part of the 8(b) definitions and is broader. Also, as a stand alone Federal law, it would not appear to be subject to the jurisdictional limits of Section 7. What am I missing, other than the lack of an enforcement mechanism?
 

JoshR:

There may be consensus (see here and here) that while waterboarding is not torture, it is Cruel or Inhuman Treatment that would be prohibited when this compromise amends the War Crimes Act.

I am not seeing how. The proposed definitions for "torture" and "cruel and inhuman treatment" are nearly identical:

(A) TORTURE.—The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) CRUEL OR INHUMAN TREATMENT.—The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

 

Bart DePalma,

Nearly identical is not the same as identical. Law is not horseshoes.
 

FYI, I just heard Fox News report that McCain said today waterboarding is forbidden by the agreement. The paraphrased statement was attributed and on-the-record, but not on-camera.
 

GLN,

Section 8a1 specifies the scope of section 8c: it specifies acts which are prohibited by Common Article 3 but are not prohibited by the War Crimes Act. Thus, Section 7 stops any judicial remedy for violating 8c.
 

Quote:

------
(other than pain or suffering incidental to lawful sanctions)

Yeah. As I suspected.

They can't beat a confession out of the suspect, but if they "have to use force" to "ensure prisoner compliance", as a "lawful sanction", well... they just told the detainee to stand for 24 hours; the beatings were because the detainee wouldn't follow orders, not part of the interrogation.
# posted by LongHairedWeirdo : 2:24 PM
------

Yes. Nothing in the "compromise" appears to define the parenthetical, leaving us to speculate about its intent. And the "compromise" makes it more difficult to refute an executive definition like the one you fear by by eliminating the right to invoke Geneva, and by prohibiting courts from considering Geneva precedent (and all other international and foreign precedent) when interpreting the parenthetical.

Finally, the "compromise" broadly delegates to the President the power to "interpret the meaning and application of the Geneva Conventions." Courts may well view this as a reason to give great deference to a President's interpretation of the parenthetical.

I think you've found the largest loophole in this bill.
 

Quote:

------
Ask John McCain what happened to him and his buddies in Nam. WHat do you thin khappened to the hostages in Lebanon and the US Embassy in Tehran. To US prisoners of the Chinese and NoKors in Korea. To the guys captured during the Gulf War. The Geneva Conventions have NEVER protected out guys in the past an dit's foolish to think the ywill in the future.
------

Obedience to Geneva often has been poor, but that doesn't excuse passing off misinformation as fact. In particular, none of the hostages Iran took in 1979 were assaulted, let alone tortured. Of course hostage-taking itself violates Geneva.

It does seem that obeying Geneva ourselves gives our troops only marginal protection. However, I think codifying exceptions to Geneva will significantly worsen this picture, and will also tend to erode customary prohibitions on attacks on civilians (read: terrorism).

Quote:
------
Here's one question liberals never answer. How do YOU propose to get information. And based on the Brian Ross ABC report and other rep[orts, the current tactics HAVE worked. KSM spilled the beans. Abu Zubaydah and BinAlshibh and others gave it up. Not everything they said turned out, but a lot of it did and we have repaed the benfits and saved lives.
------

Assuming, for the sake of argument, that the current tactics did yield benefits re: KSM et al, they also yielded much crap -- e.g., the al Libi "confessions" -- that were instrumental in driving us needlessly into Iraq. Based on the skimpy publicly-available record, coercive interrogation looks like a loss. And that's putting aside the morality issues.

Quote:
------
Let's say you've captured KSM. You know he knows things. What do YOU do? Do you just ask him nicely and if se says no, then that's it. You can just ask him his name, his age and his serial number? You have to give him a lawyer?
------

You do the same things effective police officers do, including, of course, using feigned friendship and artful deception.

As for "the ticking time bomb," which is the usual followup to the response I've given, what makes you think a tortured terrorist won't just lie and send you off on a wild-goose chase while the bomb ticks down to zero? He has no way out in any event, and he'd like to ensure that his bomb goes off. Why wouldn't he lie?
 

Although this law doesn't apply to domestic prisoners (say, somebody arrested for some sort of felony charge), it gives me the shivers to think about what it will mean in terms of an acceptable bar for treatment of prisoners here in the states.

After all, if none of this is cruel, inhumane, or unusual, what's to prevent this from eroding our own domestic, constitutionally provided-for protections? since it's just a matter of interpretation by the president?
 

This statute, if adopted, should likewise be the standard for every police department in the United States. It would be hypocritical to have anything more/better/less crueler domestically.
 

Your link to the bill does not link to the bill. It links to yesterday's blog.
 

if someone did to my son or daughter what ms parks suggests, then i would shoot them in the head. but i don't suppose that's legal under the geneva convention, is it?

but if my son or daughter were a soldier, and i would expect them to be shot in the head, then it would be a welcome relief to know that they suffered, rather than died.
 

If you ask any normal person if they would want their son to live in a room 23 hours a day and only get 1 hour for exercise, they would call that cruel; however that is how we treat tens of thousands of prisoners in our domestic prisons, yet no one goes berserk about torture.

Vegetarians suffer tremendous mental anguish in our prisons because there is no such thing as a vegetarian diet available.

I think you ask the wrong question. The question is, "your son or daughter is being held captive by Muslims who want to behead them and we think Hassan knows where they are being kept. What should we do to Hassan to get him to talk?"

I'm afraid the same parents would have an entirely different, stark response to your question of what is proper torture. In fact, I have no doubt that they would say drilling a hole in Hassan's eye does not seem unduly cruel. Non?
 

Can you comment on whether you believe the legislation, if passed into law, would contravene the provisions of the Eighth Amendment which proscribes the infliction of cruel and unusual punishment?
 

Two meta-points, if you will:

1. I do not see, from a jurisdictional standpoint, how any "adjustment" of torture standards by Congress can stand up under international law, the laws of war or the Constitutional law. It is patently obvious the adjustments made in the new law are ad hoc and arbitrary and make no effort to show how they comport with the extensive web of existing law and precedent on this topic. Saying 2+2=5 does not make it so; and this is essentially what Congress has tried to do. For that reason, I think the entire thread of discussion that parses the new law is superfluous, dilatory and a waste of everyone's time. If I'm way wrong on this, please correct me.

2. The U.S. Supreme Court, when it reviews this new law for constitutionality, is going to focus on the massive and unprecedented jurisdictional issues this raises, not the parsing of what is torture and what is not. The jurisdictional and supremacy issues this law raises are 1,000 times more problematic than the torture vs. non-torture language. That's just salted peanuts for the rubes. The only real and important question here is under what authority can Congress legalize torture at all, regardless of how they define it. Not a single piece of law allows torture, period, not international law, the laws of war or the Constitution. The Administration's argument from day one has been that torture is allowed solely because "unlawful enemy combatants" fall outside any legal jurisdiction on the planet and therefore anything can be done to them. Pretty slim reed to hang a 1,000 pound anchor on.
 

The new law fails on the fundamental weakness of proving too much. The DOJ did this on the NSA spying case and Judge Anna Taylor nailed them on this issue. Taking their argument on its face, she found the DOJ saying the Executive is unbound by any law and found the argument severely wanting for authority. The torture law is based on the same fundamental flaw because it is based on exactly the same flawed reasoning and was probly cooked up by the same people.

The administration can cite no authority on the planet which deems human torture acceptable. All authorities which exist, in whatever jurisdiction one names, expressly and forcefully state the opposite. The only argument, therefore, is that none of these authorities "apply" in this specific set of circumstances. This is such an obvious shill. No legal principle exists to simply "create" a right to torture. The premise must be founded upon something, not a negative argument that it can arise solely because its specifics fall outside all known categories of "something."

But apparently, thus far, this ridiculous argument is having its intended dilatory effect, based on material written here and elsewhere. It's stupid to argue the antecedents and conclusions if the premise itself has no foundation.

In this case the premise has no foundation and the Administration already knows it. They are just making this garbage up off the top of their head to justify what they have already done. That turns the entire theory of law and sequence of logical analysis on its head. These guys have arrived at pre-determined conclusion and are now offering you a conceptual premise which magically supports it. What a surprise ! What a coincidence !
 

Although this law doesn't apply to domestic prisoners (say, somebody arrested for some sort of felony charge), it gives me the shivers to think about what it will mean in terms of an acceptable bar for treatment of prisoners here in the states.
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