Will Congress Authorize Violations of the Geneva Conventions?

Marty Lederman

Sorry, I've been tied up with other matters and therefore don't have time to blog about the details of the draft Warner/McCain/Graham bill. Suffice it to say that, as a general matter, it is better than the Administration bill in several respects, but that it would still be very, very troubling. With respect to the Administration's detention and interrogation practices, it would largely undermine the salutary effects of the landmark Supreme Court decisions in Rasul and Hamdan, and might well provide effective legal cover for many of the CIA's "alternative" techniques--even though that might not be the intent of at least some of the sponsors of the legislation, and even though many of those techniques almost certainly would violate Common Article 3 of the Geneva Conventions. [UPDATE: A clarification: I'm not suggesting that the bill would be fairly construed to authorize those techniques. To the contrary, I think the better reading is that the McCain Amendment prohibits most or all of the CIA techniques, and that Common Article 3 is even more restrictive than the McCain Amendment. I am afraid, however, that the Administration's very resourceful lawyers will construe the McCain Amendment and Common Article 3 very narrowly -- or will secretly assert a Commander-in-Chief override -- and that sections 6 and 8 of this bill will effectively preclude meaningful judicial review of such interpretations, which will in turn only encourage further "creative" lawyering.]

Hilzoy's remarks over at Obsidian Wings basically capture the primary problems with the draft, the most important of which by far is that section 6 of the bill would reverse the Rasul decision by (apparently) eliminating the ability of any alien detained overseas to effectively challenge in court the fact or conditions of detention and interrogation (other than in very circumscribed appeals from the decisions of Civilian Status Review Commissions or military tribunals).

By all accounts, it is Senator Graham who is insisting upon inclusion of section 6 -- particularly the elimination of habeas rights. It is understandable that the Senator would wish to minimize the prospect of countless minor or frivolous habeas petitions from prisoners overseas. But there are ways to craft legislation that would discourage such meritless petitions -- or perhaps impose reasonable exhaustion requirements of a sort -- while still preserving adequate procedures for challenging those detentions, and interrogation techniques, that are of very dubious legality.

In a New York Times story over the weekend, Senator Graham is quoted as saying of the Vice President and other Administration hardliners: "They have a view of executive authority that basically smothers the other two branches." This is absolutely correct. But what experience has taught us over the past few years is that the only effective means of stopping the "smothering" of the other two branches is the prospect of judicial review. The Administration's entire edifice of detention and interrogation policy was dependent from the very start on the goal of ensuring that the courts would never be able to oversee such practices: That was, after all, the reason that they chose to detain the prisoners at Guantanamo (and at other foreign locations) rather than in the United States--because they (wrongly) assumed such offshores locations were beyond the purview of federal courts. If it were not for Rasul and Hamdan, the unlawful detentions and interrogation techniques would be continuing unabated to this very day.

Senator Graham's section 6 apparently would eliminate the prospect of effective judicial oversight -- which is the only way of ensuring that not only the military, but also the CIA, abides by the laws that Congress enacts and the treaties the Senate ratifies. If Senator Graham wishes to ensure that his own substantive reforms stick, it's imperative that he not eliminate the only effective means of enforcing those substantive standards. (Moreover, the elimination of habeas rights previously provided might also raise serious constitutional questions.)

One other important thing to note, which may be of particular interest to Senator McCain:

As I've explained, the Administration bill would purport to "construe" Common Article 3 of Geneva to prohibit only what the McCain Amendment prohibits (and to cut off any judicial review that might overturn that implausible interpretation of Common Article 3). The Warner/McCain/Graham draft thankfully does not go so far. (Indeed, by providing that violations of McCain are "grave" breaches of CA3, it clearly indicates that CA3 is broader than McCain.) But it would (in section 8) amend the War Crimes Act such that if an interrogation technique does not violate the McCain Amendment, it would not violate the War Crimes Act (even if it is "cruel treatment" under Common Article 3).

I have speculated that the Administration believes it can live with the McCain Amendment because it has construed that statute -- prohibiting cruel, inhuman and degrading treatment, primarily defined as conduct that "shocks the conscience" under Due Process doctrine -- not to foreclose many of the CIA's "alternative" techniques.

My speculation has now been confirmed by Pentagon General Counsel Jim Haynes. [UPDATE: And by the Attorney General, who told the editorial board of the Wall Street Journal that "the CIA would engage in no conduct that 'shocks the conscience.' He added that this concept was context-dependent, since the 'shock' threshold may be higher with the likes of KSM--who planned 9/11--than for ordinary detainees. At least we hope it is. In theory, this means there's still room to employ some of the aggressive techniques--such as stress positions, sleep deprivation, temperature extremes--that have been used successfully against al Qaeda bigwigs."]

Haynes has been nominated to be a federal judge, despite the fact that in 2002 he advised the Secretary of Defense that techniques such as waterboarding, stress positions for up to four hours, threats of death to the detainee and his family, hypothermia, forced nudity, the use of phobias (such as dogs) to induce stress, mild assault, and hooding, "may be legally available" for U.S. armed forces interrogators. Haynes actually went further than that, and specifically recommended that the Secretary approve the use of forced nudity, the use of phobias (such as dogs) to induce stress, mild assault, and hooding, even though some such techniques both violated the Uniform Code of Military Justice and would appear to be "cruel, inhuman and degrading treatment," which was at the time unlawful under Article 16 of the Convention Against Torture (and is now prohibited by the McCain Amendment).

Haynes has recently submitted written responses to questions from the Senate Judiciary Committee, which is considering his nomination. There are several striking things about those responses that I don't have time to address just now. But for now, the most important development is that Haynes repeatedly argues that the use of dogs to exploit phobias, the use of stress positions for up to four hours, and forced nudity (not to mention hooding and forced groomng) -- all of which he recommended be approved for use by the military -- are not "cruel, inhuman and degrading treatment," as that term is defined in CAT Article 16, and thus in the McCain Amendment. (And recall that Haynes also thought that threats, hypothermia and waterboarding "may be legally available," notwithstanding the prohibition on "cruel, inhuman and degrading treatment.")

If this is the Administration's interpretation of the McCain Amendment -- and there's no reason to think otherwise -- then any legislation effectively setting the McCain Amendment as [the only restriction that is, as a practical matter, enforceable], including by amendment to the War Crimes Act, will only invite the CIA (and perhaps even the military) to continue using such "alternative" interrogation techniques.

If this is not what Senator McCain intends -- and it appears from his public statements that it is not -- then he should do one of two things: Either (i) retain Common Article 3's basic ban on all "cruel treatment and torture" as a subset of crimes under the War Crimes Act; or (ii) amend the legislation to specify that the McCain Amendment itself categorically prohibits such "alternative" techniques. [UPDATE: As explained above, even if there are no such changes, he should also clarify that Common Article 3 is more restrictive than the McCain Amendment -- something that is, in any event, implicit in the current draft.]
Posted 6:10 AM by Marty Lederman [link]