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.
Posted 3:41 AM by Marty Lederman [link]