The Torture Chorus

Marty Lederman

The Bush Administration is having a bit of a rough time just now rounding up sufficient votes for its legislation to permit the CIA's use of cruel treatment in breach of the Geneva Conventions.

No wonder, what with the fierce opposition of Senators McCain, Warner and Graham, along with five former Chairmen of the Joint Chiefs of staff -- Gen. Colin Powell, Gen. John Vessey, Gen. John Shalikashvili, Admiral William Crowe and Gen. Hugh Shelton -- and dozens more retired military leaders and former top officials from the State Department and CIA, and with the pointed warning of the current head Army uniformed lawyer, Maj. Gen. Scott C. Black, that “further redefinition of Common Article 3 is unnecessary and could be seen as a weakening of our treaty obligations.”

So the Administration is understandably anxious to marshall support on behalf of its position, too.

But its public support hasn't been quite what they (presumably) had hoped for.

For example, as Brian notes below, the Traditional Values Coalition is pushing the not-so-veiled argument that torture is the Christian way, euphemistically explaining that our rules for interrogation must "catch-up" with the new forms of war (that "the lines must be redrawn"), and encouraging "all of our supporters and affiliated churches to contact their elected representatives and let them know we support President Bush's efforts to update our methods of interrogating terrorist detainees."

The Wall Street Journal is already looking back wistfully to the days when torture was the norm, candidly expressing its "fear" that techniques such as stress positions, sleep deprivation, and temperature extremes "are a thing of the past."

Then there's Republican Rep. Lynn Westmoreland of Georgia, who told a Chamber of Commerce luncheon that he "voted for torture," only to later concede that perhaps he ought to have spoken more with greater circumspection: "Maybe I shouldn't have said I voted for torture. I should have said I voted against the anti-torture bill."

Thomas Sowell, meanwhile, lashes out at the likes of McCain and Powell, characterizing those opposed to the authorization of cruel treatment as being squeamish, confused, suicidal, and weak, and lacking "the clarity and the courage to go all-out in self-defense against those who are going all-out to destroy us."

John Yoo has weighed in with a more general defense of the President's and Vice President's ultra-Executivist designs. But he didn't help his, or their, cause any by making jump-the-shark claims such as:

-- that "the founders intended that wrongheaded or obsolete legislation" would be "checked by presidential action" (a presidential "dispensing" power that has been long, and uncontroversially, been rejected out-of-hand);

-- that when FISA and other statutes were enacted in the 1970's, there were "no serious national security threats to United States soil"; and

-- that the Court's decision in Hamdan -- in which the Court held that the President had violated congressionally enacted statutes -- was more a rebuke of the Congress than of the President.

Now, enter Brad Berenson, former attorney under Judge Gonzales in the Office of the Counsel to the Preisdent. Berenson is generally very thoughtful and articulate, more often than not the (relative) voice of pro-government reason in debates about the Administration's more aggressive assertions of executive prerogative in the war against Al Qaeda. But in his recent interview on NPR's To the Point, it appears he wasn't quite on script in defending the Administration's draft cruelty legislation.

For example, in response to the McCain/Warner/Graham argument that if the U.S. "clarifies" its interpretation of Common Article 3 in a manner that will be rightly viewed throughout the world as a breach of that treaty obligation, it would undermine international compliance with Geneva, much to the detriment of our own detained personnel, Berenson duly invokes the White House line that "there’s a central line of fallacy in that line of argument" because "Common Article 3 would never apply to our own soldiers in the conduct of a war. Our soldiers fight according to the laws of war; they comply with the international laws of armed conflict. And as such, when they’re captured they’re entitled to POW status and the treatment afforded to lawful combatants –- POWs under the Geneva Conventions."

This argument isn't terribly persuasive. Basically, what Berenson is saying is that it doesn't matter if Congress adopts an implausible interpretation of Common Article 3, as long as we construe the rest of the Geneva Conventions properly, because U.S. troops are covered by those other provisions. But of course once the greatest superpower on the planet feels free to conspicuously turn an important Geneva protection on its head, the sanctity of Geneva as a whole -- reasonable interpretation of all of its provisions -- would be up for grabs by every country, whenever exigencies appear to call for such creative misreadings.

Alex Chadwick, however, interrupted Berenson with a more fact-specific, practical interjection: "But you know, they’re not just soldiers out there in the war on terror; there are also agents . . . who work for the CIA."

To which Berenson responded: "That’s true." And those people always have and continue to take extraordinary risks on the public’s behalf, and when they are captured they are treated far worse than our soldiers."

In other words: Yup, under the Administration's view, we could no longer expect nonuniformed detained U.S. personnel to be able to rely on even the mininal protections of Common Article 3.

That's comforting.

But it's not the most alarming part of the Berenson interview.

Earlier, Berenson offered the now-boilerplate White House talking point that Common Article 3 standing alone is allegedly too vague, and that the President's bill has the virtue of limiting the application of Common Article 3 to the protections provided under the U.S. Constitution (namely, the "shocks the conscience" test of the Fifth Amendment).

Chadwick chose to press Berenson on this lawyer's distinction to see how it would play out in operation:

"Let me ask you a specific question. There are reports that the CIA in its interrogations would strip a prisoner naked and lead him around by a leash. . . . Would that be legal [under the President's bill], or not?"

BERENSON: "Well, that illustrates the precise problem the President is trying to solve. There are probably a substantial number of people around the world, countries around the world, tribunals around the world, that would say that would be a violation of Common Article 3 of the Geneva Conventions. If that’s true, then as a matter of domestic law the CIA agent who has led the terrorist suspect around that way has committed a felony under the War Crimes Act. And that’s what the President doesn’t want. And under U.S. constitutional standards, that probably would not be unlawful, but you would have to analyze it much more carefully than just an off-the-cuff response."

Think about that remarkable response for a minute. Berenson is lobbed a softball question about how a particularly reprehensible technique, prohibited by current law, would be treated under the Administration's proposed statutory amendment.

Berenson does not say that it's a ridiculous hypo because no U.S. interrogator would ever consider using such a technique. To the contrary: It "illustrates the precise problem the President is trying to solve"!

And he does not say, as one might expect, "Don't worry, Alex: Such conduct would shock anyone's conscience, even the Vice President's, and so 'Walking the Dog' would remain illegal, even under the White House standard."

Instead, he responds that:

1. The technique would probably be permitted under the President's bill; but

2. It would depend on all the circumstances of the particular case. (Imagine the OLC memo parsing the particular variables: How long was the leash? Was the detainee asked to bark? Had the detained previously been forced to answer questions while stripped naked? Etc.)

That is to say: It appears that the President is fighting tooth and nail for the legal authority . . . . to be able to lead naked prisoners around by a dog leash.

Yeah, that's undoubtedly the message the White House was hoping to convey . . . .

Of course, this happens to have the great virtue of being true. Berenson is too candid and honest for his own good (or for that of the White House, anyway). As he explains, currently such grotesque behavior, like the other CIA techniques the President wishes to preserve (threats, Long Time Standing, Cold Cell, etc.), is quite clearly barred by Common Article 3. (Those "substantial number of people around the world" in this case are right!) But "that’s what the President doesn’t want." And so under the President's bill, the legal question would be obscured -- made much less certain ("you would have to analyze it much more carefully than just an off-the-cuff response").

As noted above, one might reasonably think that such conduct would shock the conscience, and thus be unconstitutional, even under the President's proposed legal floor. But that would be underestimating the ingenuity of the Administration's lawyers, who apparently have difficult-to-shock consciences, and who would no doubt figure out some way to conclude, as Berenson does, that "under U.S. constitutional standards" such conduct -- like hypothermia, stress positions, and threats of death to one's family members -- "probably would not be unlawful."

* * * *

For quite a while now, I've been arguing in this space that if the United States is to engage in such conduct, it should only do so pursuant to specific and forthright legal authorization, after open public debate about whether we should go down this road -- rather than pursuant to secret lawyers' memoranda in which ordinary terms such as "torture," "humane," and "cruelty" are construed in quite unnatural ways.

Well, I've gotten my wish: Now we're having that public debate -- of a sort. (Many participants remain reluctant to say clearly what it is that they're debating.) I can't say that it's been very ennobling or inspiring . . . although there's still hope, depending on how it is ultimately resolved.

But it certainly is revealing . . . .
Posted 2:45 AM by Marty Lederman [link]