Balkinization  

Tuesday, September 26, 2006

Union Dues and Don'ts

Mark Graber

When I was a teenager, I sold soda and sometimes peanuts at the Nassau coliseum for (then) Long Island Nets and New York Islander games. A certain percentage of our earnings went to the vendors union. We had no choice in the matter. The benefit, we were told, is that they had to use us when we showed up for work, even if we only sold water. Since we worked solely on commission, this was not much of a benefit (though we did get to see games, sort of). I also had the sense that protesting was not advisable.

When teaching Karl Klare's essay on unionism at the University of Texas, I asked my students about their personal experiences with unions. While some had no stories, and a few had positive accounts, most of the students, even the liberal students, had had negative interactions with unions. Kid after kid told of having to contribute earnings to a union on summer jobs with little expectation of any benefits in return. Rarely did union officers even try to explain the logic of the system to them, that their money was going to some higher cause. Rather than appear as the bodyguard defending the relatively defenseless against corporate bullies, the union acted the part of the bully from my perspective as a vendor and from the perspective of too many students. In theory, the class liberals defended unions, but few did so on the basis of positive personal experience.

I thought about those experiences when reading today that the Supreme Court will decide whether states may forbid unions from spending on political causes certain union fees paid by workers who would rather not join the union. As a legal matter, I am inclined to think that the state can require unions (and corporations) to have segregated funds, given that the state law also mandates that workers who would rather not join the union must nevertheless pay agency fees to the union. I have not, however, studied the issue that closely (there is a potential pyrrhic victory here, namely a pro-union decision could have implications for the relationship between money and speech that I do not favor). As a personal matter, I wonder whether the right to spend these fees on political causes is worth the bother. If my experiences and the experiences of too many young people I teach are typical, and many of the young people I teach come from working class backgrounds, unions might benefit more from trying to make more friends than fighting for the constitutional right to spend other people's money on political causes.

Further tales from a banana republic

Sandy Levinson

I strongly recommend a column in today's Boston Globe by Peter Canellos. It is tellingly titled "Congress heads into torture debate blind." It concludes as follows:

Congressional leaders have made only token gestures of demanding briefings by the administration. And the Globe reported over the summer that only about a dozen members of Congress had availed themselves of the opportunity to read the national intelligence bill, which outlines the Bush administration's policies in the war on terrorism.

Many members told the Globe that they didn't read the bill because they would then be barred from discussing it, making any debate impossible.

But watchdog groups have suggested that no debate -- or a debate behind closed doors, with security rules in place -- might well be preferable to a debate that offers only a false appearance of congressional oversight.

Having no debate indicates -- correctly -- that the administration is on its own in deciding which interrogation techniques are lawful. Having a debate conveys the impression that the constitutional system of checks and balances is in operation. But with most members left in the dark, so is the constitutional system.


Again, I ask the right-wing readers of Balkinization: Is this the way they envision governance in a respectable republic? Why aren't conservatives outraged at the degradation of what we used to believe was a system of representative democracy and the slide into a form of caesarism? I heard former Sen. John Danforth last night explain that he is a loyal Republican because he believes in "limited government." But he chooses to aim his fire at the Christian Right rather to say anything at all about the embrace of unlimited government in the name of an endless "war on terror." At the end of the day, he is just another Republican loyalist. I hope against hope that Sen. Specter will at long last genuinely stand firm against the Bush juggernaut, but it remains to be seen.

Hate to Rain on the Torture Parade . . .

Marty Lederman

The Wall Street Journal and National Review, among others, are downright giddy with delight at the prospect that, because of the new "compromise" legislation, the CIA will be able to resume its so-called "alternative" interrogation techniques. On this view, no longer need the Journal editors "fear" that techniques such as stress positions, sleep deprivation, and temperature extremes "are a thing of the past."

Sorry, but not so fast.

For reasons I've explained, there are plenty of things horribly wrong with the draft legislation, and the most recent version revealed last night is even worse. Most importantly, the amended War Crimes Act will no longer criminalize all cases of "cruel treatment" prohibited by Common Article 3. (Indeed, as my colleague John Mikhail explains in an important post on the Georgetown Law Faculty site, the new War Crimes Act would even fail to criminalize all cases of torture that Common Article 3 prohibits.) And I fear that the Bush Administration will construe the constrained definitions in the War Crimes Act, together with the vast deference afforded the President to define "non-grave" breaches of Common Article 3, to authorize a resumption of the "alternative" techniques (indeed, numerous spokespersons, including the head of the CIA, have already suggested as much); and, what's worse, the bill will unconscionably attempt to insulate such Executive "interpretations" from any effective judicial and legislative review.

The Journal relishes the prospect that the White House will do just that:
It's a fair bet that waterboarding--or simulated drowning, the most controversial of the CIA's reported interrogation techniques--will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster. This is not about "torture" or even "abuse," as some Administration critics dishonestly charge, but about being able to make life uncomfortable for al Qaeda prisoners who have been trained to resist milder forms of interrogation.

The National Review, for its part, states expressly what is implied in the Journal editorial -- namely, that the President would be justified in doing so, because the compromise legislation would authorize the use of such techniques:
[T]he compromise legislation will define compliance with domestic-law obligations in such a way that the interrogation program can continue (with the apparent exception of water-boarding, a controversial but highly effective technique). It will also define U.S. compliance with international-law obligations under CA3, but only in terms of what would constitute "grave breaches" of it. Significantly, the definition of "grave breaches" is the same for the purposes of both domestic and international law. This is just as the president wanted: It means that if an interrogation is in compliance with domestic law, it is also in compliance with international law — thereby forestalling prosecutions in foreign and international tribunals.
There are several basic mistakes in this part of the NRO editorial.

For one thing, Common Article 3 establishes domestic, not merely "international law," obligations. As Justice Kennedy explained in Hamdan, it "is part of a treaty the United States has ratified and thus accepted as binding law." Indeed, Common Article 3 is part of the "supreme Law of the Land," per Article VI of the Constitution, and a President who takes his constitutional obligations seriously is bound to faithfully execute it-- not only as a matter of "international" law, but as a matter of U.S. law.

Nor would compliance with domestic law, such as this statute, foreclose prosecution in foreign and international tribunals for violation of the laws of war and the Geneva Conventions.

Most importantly, however, it is simply not the case that the bill would authorize the CIA "program" to continue, no matter how often the Administration might say otherwise.

To begin with, such techniques might, at least in some cases, constitute "cruel treatment" and "torture" even under the constrained definitions of those terms in the bill. I've already explained why I think those definitions are inadequate, but Senator McCain suggested on Sunday that on his reading of the language (apparently w/r/t "serious mental pain or suffering," in particular), some variants of the techniques would remain war crimes. Further legislative history might flesh out this possibility.

But even if the techniques are no longer deemed "war crimes," the amended War Crimes Act would not describe the sum total of "cruel treatment and torture" that Common Article 3 proscribes. Therefore the CIA techniques (some of them at least) would remain violations of CA3, even if they are not criminally enforceable.

Moreover, section 8(c) of the bill would actually re-enact the December 2005 McCain Amendment, which incorporates the due process "shocks the conscience" test. Senator McCain reportedly has expressed the view that that standard would prohibit at least some of the "alternative" techniques -- and he's almost surely correct, notwithstanding that the Administration has apparently (and secretly) concluded to the contrary.

The bill does not purport to supersede or override U.S. obligations under Common Article 3 -- everyone involved in the negotiations agrees on that much. And CA3 does prohibit the techniques. So, for that matter, does the "shocks the conscience" test of the McCain Amendment, fairly applied.

Thus, the conduct would remain unlawful, even if it is not covered by the War Crimes Act.

Of course, there's a very good chance that the lawyers in this Administration will conclude otherwise, by hook or by crook, because those in charge seem to have a very unorthodox view of what it means for the President to faithfully execute the law (see my discussion here). And the compromise bill unfortunately will provide them with the confidence to do so without significant fear that their implausible interpretations will ever be subject to review.

But then again, it might be years before there are further high-level detainees for whom the CIA techniques will be proposed. By that time, perhaps there will be different officials and lawyers making decisions in the Executive branch -- including those who are willing to construe the Geneva Conventions (and the McCain Amendment) faithfully. Or perhaps not. Only time will tell whether the U.S. will ever use Cold Cell, Long-Time Standing, and other forms of "cruel treatment" and torture, in violation of our treaty obligations.

So the folks over at the Wall Street Journal and the National Review might be advised not to pop their champagne corks just yet -- we might not know for awhile whether the Executive branch will authorize the CIA to breach the Geneva Conventions.

It Gets Worse

Marty Lederman

I'm told that this is the latest version of the commissions/Geneva/War-Crimes bill. According to the Washington Post, there is indication Senators McCain, Warner and Graham have acceded to it.

Apparently there are over 100 changes, many of them "technical." I haven't read it through it carefully yet, but I am informed that it would authorize and encourage even greater departures in the commissions procedures from court-martial practice, including further restrictions on a defendant's right to examine all of the evidence against him. Also, this version reportedly would make it more difficult to challenge any decision by the Secretary of Defense to depart from the statutory procedures for commissions.

Perhaps most alarmingly, the new version contains a much broader definition of "unlawful enemy combatant." The "compromise" bill from last week defined "unlawful enemy combatant" as "an individual engaged in hostilities against the United States who is not a law enemy combatant." The new bill would expand the definition to cover:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Thus, if a person purposefully and materially supports hostilities, he will be an unlawful combatant, even if he never engages in any hostilities himself. [NOTE: At least one of the Administration's supporters believes that the mere filing of a habeas petition is a form of "aggression against the United States." Presumably that is not the intent of the drafters, or else all those attorneys now representing military detainees would become "unlawful enemy combatants"!]

The second subsection is, perhaps, even more alarming: It appears to suggest that even if a detainee has not engaged in hostilities or supported hostilities, he will be deemed an unlawful combatant if the Department of Defense has said so! Note that this definition is not limited to aliens abroad. It applies to persons in the United States, and to citizens and aliens alike.

Some observers understandably fear that the the purpose or effect of this provision might be to give the Executive a statutory authority to militarily detain the category of persons deemed "unlawful enemy combatants." But the definition is so broad, and standardless, that it suggests it should not be read as such a detention authorization. (The bill does not expressly indicate that all persons defined here as "unlawful enemy combatants" may be militarily detained.) Otherwise, DoD's determination of status based on whatever standard it wished to apply would be determinative of the Executive's authority to detain. Even for these drafters, that sort of extreme carte blanche to the President to detain whoever he sees fit, without any statutory limit at all, seems highly unlikely.

* * * *

The "Thou shalt not invoke one's Geneva rights in court" provision has been moved from section 7 to section 5. The War Crimes Act amendments are now in section 6. And the habeas suspension is in the new section 7.

It is worth noting one thing about the breadth of the habeas-stripping provision, both in the new draft and in last week's version, that has thus far received inadequate attention in the public debate. That provision would eliminate the right to petition for habeas for all alleged alien enemy combatants, whether or not the detainee has been determined to be an "unlawful" combatant -- indeed, even if the detainee is deemed a lawful combatant (e.g., a POW) -- and no matter where they are detained, including in the United States.

The provision therefore would appear to overrule not only the recent Rasul decision, which recognized habeas rights for detainees at Guantanamo, but also the holdings in the World War II cases of Quirin and Yamashita, which dealt with alien detainees in the U.S. and in an occupied insular possession, respectively. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings(and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").

If section 7 of the new draft legislation had been in place in 1942 and 1946, and if such a withdrawal of habeas rights were constitutional -- which remains an unresolved question -- the Court would never have been able to address the merits of the questions presented in Quirin and Yamashita. Thus, this habeas-stripping provision would be a much more dramatic repudiation of traditional, longstanding habeas rights than has been commonly acknowledged.

Monday, September 25, 2006

. . . And From the Roman Republic

Stephen Griffin

Mark Graber uses Greek democracy to critique the Iraq war. Let's add to that the relevant example of the Roman republic, which limited military dictatorship in time of invasion (and thus the excuse of military necessity) to one year. The example set by the Roman republic (familiar to the framers of our Constitution, of course) is particularly relevant to the 9/11 Authorization to Use Military Force (AUMF) and the apparent authority it provides to prosecute an endless "war on terror." Unlike Mark, I do not consider the absence of a formal declaration of war to be significant. However, there is a great question (not faced by the otherwise analytically sharp Harvard Law Review article by Goldsmith and Bradley on the AUMF) as to whether our constitutional system is compatible with a war without end. Surely the Roman republicans would have thought not.

More Advice from Classical Greece

Mark Graber

Democracies, many classical Greeks believed, were slow to fight, but more effective when they fought (ancient memory suggests this assertion is somewhere in Thucydides, but I could not find the exact citation). The idea was that a democracy required a broader consent than an oligarchy before going to war, that the people who actually did the fighting and dying in a democracy had to approve for battle to be waged. Obtaining such consent was not as easy as talking five knights into taking their peasants across the seas. Lots of people had to be convinced that war was in the national interest. On the other hand, once proponents of war in a democracy persuade the population, democracies are thought able to bring far more resources to bear in combat than other regimes. People who support a war, classical Greeks believed, are more likely to make the necessary sacrifices than people who don't. Common sense.

Whatever else may be said for American policy in Iraq, that policy fails to meet classical Greek standards and is suffering for that failure. To begin with, the Bush/Yoo doctrine seems aimed at minimizing the consent necessary to begin and maintain military operations. From the refusal to seek a declaration of war to the idea that policy towards detainees will be subject to presidential interpretation and non-justiciable, the Bush administration has sought to narrow the relevant consenters to the bare minimum that might be regarded as constitutionally mandated. Even if one thinks there is a scrap of constitutionality in Bush doctrine, one should note that, when faced with a constitutional choice, this administration always prefers the route of least consent.

As important, and related, by refusing to secure broad consent for the war in Iraq, the Bush administration has been forced to minimize the resources necessary to win the war on terrorism. The result has been that inadequate troops were on hand to secure the peace, the costs and the time necessary to rebuild Iraq have consistently been grossly underestimated, and no effort has been made to ask most American citizens for the resources necessary to rebuild Iraq. Bush cannot ask for the substantial tax increase probably necessary for rebuilding the Iraqi infra-structure because he has not sought the broad based support for his policies that might induce the sacrifices necessary to execute that policy properly.

The result, classical Greeks would recognize, is a disaster. On the one hand, the Bush Administration's misadventures in the Middle East have ravaged a nation, making that nation ideal soil for terrorist networks. On the other, because most Americans have either opposed or been uninvolved in that effort, they are with some justification unwilling to provide the resources necessary to undo the damage done. No wonder many leading Republicans hope the Democrats do better than I expect this election! The real challenge for Democrats and everyone else is to find a policy that enjoys the support necessary to gain the necessary resources, and such support is not likely to be gained by ritually citing Alexander Hamilton on the unitary executive.

Thucydides weighs in

Sandy Levinson

A reader of Balkinization was kind enough to send me the following quotation from Thucydides:

"To fit in with the change of events, words, too, had to change their usual meanings. What used to be described as a thoughtless act of aggression was now regarded as the courage one would expect to find in a party member; to think of the future and wait was merely another way of saying one was a coward; any idea of moderation was just an attempt to disguise one's unmanly character; ability to understand a question from all sides meant that one was totally unfitted for action. Fanatical enthusiasm was the mark of a real man, and to plot against an enemy behind his back was perfectly legitimate self-defence . . . and indeed most people are more ready to call villainy cleverness than simple-mindedness honesty. They are proud of the first quality and ashamed of the second." Thucydides, The Peloponnesian War III, 82, trans. Rex Warner, The Penguin Classics, pp. 209-210.

Interestingly enough, one of the sources I found as I was looking for an exact citation was http://www.anti-rev.org/textes/VidalNaquet92c/, which posts a lecture by Pierre Vidal-Naquet. "Who are the Assassins of Memory?" Vodal-Naquet, who died only a few weeks ago, I believe, was a notable historian of the Holocaust and, necessarily, how so much of the issue is linked with the integrity of language.

Contemplating a convention

Sandy Levinson

A reader of my previous post wrote, with regard to the "(And How We the People Can Correct It)" part of my new book, "I'm new to Balkinization, but wouldn't a new constitutional convention be a total disaster for the country?"

This, of course, is a thoroughly reasonable question. Indeed, it is the most common response by friends when I lay out my argument. Few actually defend the present constitutional order--the number of actual fans of the electoral college diminishes daily--but most seem to think that my proposed cure--a new constitutional convention--would be far worse than the disease. I suspect I'll be posting further musings on this issue, but let me suggest for now the following: If, as I think is the case, most people who define themselves as "progressive," "liberal," or "left" are scared to death of a new convention because of a belief that it would result in "a total disaster for the country," what does this say about "our" faith in some form of what for lack of a better term might be called "robust democracy"? There are, as I acknowledge in the book, good reasons to be fearful of populist movements, but, as I also argue, if the left has basically given up on the proposition that we can persuade our fellow citizens of the merits of our positions--or if we simply believe, with some reason, that the political system has become so corrupt and subject to purchase by those with money or celebrity--then there is nothing to hope for beyond a naive faith in the courts. One of the things that has been impressive about a number of right-wing organizations over the past 30 years is their faith in democracy and old-fashioned organization. It is the right that is willing to talk about constitutional amendments--which, to be sure, are dreadful in their specifics--while the left too often attacks the idea of constitutional amendment itself rather than articulates why the specific ones under discussion are awful but why others might contribute to the fulfillment of the aspirations of the Preamble.

One of the awful failings of the Constitution is precisely that it does not spell out how an Article V convention would actually operate. We would have to make it up as we went along. But we should at least recognize that the Constitution itself recognizes the possibility of its own imperfection and explicitly provides that a new convention is thinkable. So let's think about it and how one might actually be organized. Otherwise, I am afraid that the very idea of significant change will continue to appear simply utopian because the US Constitution makes it so impossibly difficult.

"Our Undemocratic Constitution"

Sandy Levinson

I take it that anyone who's been reading Balkinization for the past several months knows that I have a new book, "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It"). It sets out a variety of arguments, some of them already familiar to Balkinization regulars, about the deficiencies of our Constitution and calls for a new constitutional convention to correct them. I am relieved to say that not all of the arguments have been rehearsed on Balkinization, so there IS some new stuff in the book, e.g., an attack on policy-based presidential vetoes and a discussion of the "second-class citizenship clauses of the Constitution." In any event, you can find the cover of the book just to the right, with hyperlinks to Barnes and Noble and Amazon. This turns out to be an interesting test of economic theory, inasmuch as B&N is offering the book at a price at least 20% lower than Amazon. (And for "members" of B&N, it goes down another 10%, to just over $20.00. And if you order another book, say Mark Graber's wonderful book on Dred Scott, you get free shipping!)

Needless to say, I will welcome any disputation (and even agreement!) by Balkinization participants. For better or worse, I have persuaded myself of the validity of my own arguments. That is, I do believe that the Constitution is dangerously dysfunctional for our politics today and that serious discussion of this premise is impeded by the ridiculous degree of veneration that we give the Constitution.

One other point, incidentally: I waste no time in the book attacking the Framers. I am willing to stipulate that they were all honorable men--we can table for this moment the question of slaveholding and collaboration with slaveholders--who did the best they could to shape a new nation in perilous times. Everything might have made perfect sense in 1787-88. But the Constitution badly needed some "sunset provisions." My complaint is that we don't listen to the Framers' own entreaties to be guided by "experience" rather than mindlessly stick to tradition and "custom." Whatever the Framers were, they were not Burkeans. They were armed revolutionaries who overthrew a reasonably good, but defective, polity because it was found inadequate to the American reality. And they then in effect overthrew a second polity--that established by the Articles of Confederation--for similar reasons, even if they didn't have to take up arms to do it. I don't advocate the taking up of arms, but I do suggest we emulate their questioning spirit and willingness to convene for a discussion of what kind of political system is most fit for our contemporary life.

Sunday, September 24, 2006

Why Iraq is Worse than Vietnam

Sandy Levinson

"Henry," responding to my previous posting, writes that "there are no senators like Al Gore Sr. or Fulbright now, but the gutless Democrats are called "liberals." (For those of you too young to remember, Gore and Fulbright opposed the war in Vietnam in terms that no Democratic senator dares do today with respect to Iraq.)"

I'm not filled with admiration for contemporary Democrats, but don't we have to concede that Iraq is altogether more difficult than Vietnam? I was adamantly opposed to the Vietnam War; for better or worse, I had no compunctions about advocating an American defeat. Like many people of the time, including Gore and Fulbright, I thought we had no business being in Vietnam, that justice might well be on the side of the North Vietnamese (a view I would be more hesitant to affirm these days), and, in any event, that the costs of unilateral withdrawal would be relatively modest, save for the reputations of those who got us into the war in the first place.

I was opposed to the American invasion, but does that opposition really generate a given position for the future. I know of now serious person who is "rooting" for the insurgency in a way that many of us (again I feel a need to add "for better or worse") were either rooting for the Viet Cong or, at the least, were genuinely indifferent about a Viet Cong-North Vietnamese victory. The people leading the insurgency are, I have little doubt, truly terrible and promise nothing but further misery for the people of Iraq should they prevail. The Shi'ites most likely to come to power are little better than the Taliban, as Frank Rich argues in today's Times. The Sunnis who are willing to kill and maim innocent men, women, and children can hardly be viewed in heroic terms.

This does not mean we have to "stay the course." I am increasingly persuaded that Rep. Murtha is right after all and that withdrawal is the best of several terrible options. But there is a reason that no one in either party has genuinely been able to develop a coherent policy. The only thing one can be confident of is that the present Administration is led by a group of dishonest mountebanks unable to admit the magnitude of their incompetence. Justified rage does not, alas, constitute a policy that we can really rally around. I'm old enough to have taken place in marches in New York and Washington calling for unilateral withdrawal from Vietnam. Some of the marchers, wisely or not, flew the Viet Cong flag. Even if I were willing to march in behalf of unilateral withdrawal from Iraq, I would be appalled beyond belief to accept as a legitimate fellow marcher anyone waving the flag of any of the insurgent groups, including, for that matter, Iran (even if I certainly oppose the Administration's threats of military force against that country).

Just as there are some who yearn for the relative simplicity of the Cold War, one might even yearn, in a perverse way, for the clarity of the Vietnam War. So the problem with current Democratic leaders cannot be reduced to lack of guts. Even were there no crass domestic political considerations, it would still be difficult to figure out exactly what the US should do now.

How language works

Sandy Levinson

For an article that Jack and I are completing, I had occasion to look up the entry for James Byrnes in the Oxford Companion to the Supreme Court. (One of the points of the article is that if Byrnes had not resigned in 1942, after one year on the Court, and had remained on the Court until, say, 1954, he could easily have dissented in Brown v. Board of Education, with presumptively disastrous consequences.) So I find it interesting to find the following sentences in the short entry on Byrnes: "In 1951 he was elected overwhelemingly governor of the Palmetto State [South Carolina]. As a Southern governor in the 1950s, Byrnes was a racial moderate: he supported segregation in schools and public facilities, but successfully pushed for a bill to suppress the Ku Klux Klan." Presumably "racial moderate" is meant to be (reasonably) complimentary: He was not an "extremist" like, say, George W. Wallace or Ross Barnett, and one should be grateful for that. That being said, he was certainly a racist who contributed to many years of continued backwardness in the Palmetto State, even if he was unwilling to support the Klan.

What is the relevance of this? I think that part of the war being waged with regard to the current legislation regarding torture and detainees rights is a struggle over public language (as well as the language of the statutes themselves). Anyone who opposes what many people throughout the world would easily call torture is being redescribed as an "extremist." To be a "moderate" on the issue is thought to be desirable, and that is the essential role being played by McCain, Graham, and Warner. They, like Byrnes, are too fastidious to support the roughest stuff, but they certainly are willing, as a matter of fact, to support the analogue to "segregation in schools and public facilities." (In the context of the 1950s, one might expect McCain, at least, to have supported anti-lynching laws, though it would still have been considered daring for South Carolina or Virginia senators to do so.).

I'm old enough--growing up in North Carolina also helps--to remember when respected pundits and politicians referred to the "extremists on both sides," one side being the Klan, the other being the NAACP or Martin Luther King. This is exactly how the torture debate is now being constructed, at least by the Administration. The Post and the Times are not yet on message, but how many operating politicians will be able to resist the lure of "moderation" and "reasonableness" rather than risk being identified with the ACLU (selected out for a dismissive reference by Sen. McCain in the transcript quoted in Marty's invaluable contribution)? To stick with the analogy, waterboarding is being treated as the equivalent of lynching, but other forms of formerly criminal abuse are being normalized as part of "the program."

A great American political figure once said that "extremism in the defense of liberty is no vice; moderation in the pursuit of justice is no virtue"? He was, of course, flailed for the very extremism of his comment. Of course the Bush corollary is that extremism in the defense of what it and it alone defines as "liberty" is no vice, but moderation in the pursuit of justice is close to an absolute virtue. Do we agree?

Senator McCain's Understanding of His Own "Compromise" Legislation

Marty Lederman

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.

Ariel Dorfman on Complicity

Marty Lederman

In this morning's Washington Post:

It was always the same story, what I discovered in the ensuing years, as I became an unwilling expert on all manner of torments and degradations, my life and my writing overflowing with grief from every continent. Each of those mutilated spines and fractured lives -- Chinese, Guatemalan, Egyptian, Indonesian, Iranian, Uzbek, need I go on? -- all of them, men and women alike, surrendered the same story of essential asymmetry, where one man has all the power in the world and the other has nothing but pain, where one man can decree death at the flick of a wrist and the other can only pray that the wrist will be flicked soon.

It is a story that our species has listened to with mounting revulsion, a horror that has led almost every nation to sign treaties over the past decades declaring these abominations as crimes against humanity, transgressions interdicted all across the earth. That is the wisdom, national and international, that has taken us thousands of years of tribulation and shame to achieve. That is the wisdom we are being asked to throw away when we formulate the question -- Does torture work? -- when we allow ourselves to ask whether we can afford to outlaw torture if we want to defeat terrorism.

I will leave others to claim that torture, in fact, does not work, that confessions obtained under duress . . . are useless. Or to contend that the United States had better not do that to anyone in our custody lest someday another nation or entity or group decides to treat our prisoners the same way.

I find these arguments -- and there are many more -- to be irrefutable. But I cannot bring myself to use them, for fear of honoring the debate by participating in it.

Can't the United States see that when we allow someone to be tortured by our agents, it is not only the victim and the perpetrator who are corrupted, not only the "intelligence" that is contaminated, but also everyone who looked away and said they did not know, everyone who consented tacitly to that outrage so they could sleep a little safer at night, all the citizens who did not march in the streets by the millions to demand the resignation of whoever suggested, even whispered, that torture is inevitable in our day and age, that we must embrace its darkness?

Are we so morally sick, so deaf and dumb and blind, that we do not understand this? Are we so fearful, so in love with our own security and steeped in our own pain, that we are really willing to let people be tortured in the name of America?

Saturday, September 23, 2006

Is a filibuster really unthinkable?

Sandy Levinson

One might think that only Republicans inhabit the US Senate, inasmuch as Democrats have seemingly been more than happy to have sat back while McCain, Graham, and Warner ostensibly took on the Bush Administration. But it is clear that that strategy has failed: The troika's Republican loyalties (not to mention conservatism) have taken precedence over a bitter-end fight, and we are left with a disgraceful bill, as explicated in many of the previous posts by Marty Lederman and others.

No one can seriously believe, with regard to the future welfare of the United States, that the bill MUST pass beforee the election in six short weeks. The pressure to pass the bill now is entirely an artifact of Karl Rove's re-election strategy for a Repubican Party that has deservedly lost the trust of the American people. (The most recent ratings for Congress are somewhere in the low 20's; i.e., over three-quarters of the American people disapprove of the present Congress, roughly the same percentage that believes the US is headed in the wrong direction.) Unfathomably, the Republicans retain a slight lead in the "better able to fight terrorism" department, though I am curious if this will survive tomorrow's lead story by Mark Maezetti, "Spy Agencies Say Iraq War Worsens Terror Threat." I assume that the Administration will try to ferret out these latest leaks of embarrassing classified information, the import of which is that Iraq has been an unmitigated disaster with regard to staving off terrorism and terrorists. It will, I trust, be far harder to dismiss the "consensus view of the 16 disparate spy services inside government" than, say, yet another eloquent column by Frank Rich that should bring any American to tears about the truly criminal incompetence of Donald Rumsfeld.

Even if it is expecting too much of the frightened Democrats actually to oppose the vaunted "compromise"/capitulation on grounds of principle, is it really too much to say that legislation that so fundamentally affects the future of this country in manifold ways--see, e.g., statements by Colin Powell and many other retired military people and other "respectable" sources who can scarcely be described as bleeding-heart liberals--actually needs what Congress purports on occasion to provide, i.e., serious hearings and even genuine debate? At the very least, one might expect such hearings to explore what is actually in the bill with regard to which methods of interrogation are "criminalized," which prohibited (even if not criminalized?), and so on, not to mention getting the professional opinion of (probably former) State and Defense Department officials as to the costs, in the international political system, of going our own way with regard to defining the Geneva Conventions and Common Article 3.

So why shouldn't we (i.e., people who maintain some loyalty, however foolish, to the Democratic Party) expect "our" leaders at least to filibuster the bill until after the election? The current atmosphere is precisely like that during the summer of 2002, when Tom Daschle made a disastrous--is it too much to call it, at least with the benefit of hindsight, "contemptible"?--decision to shut down any debate about Iraq because of a belief that Bush owned the issue and the Democrats had to change the subject. We know what happened then.

So who might take the lead in calling for a serious debate instead of this unseemly haste to pass legislation that almost no one has read (and those who have read it quite literally do not understand exactly what it means)? Let me make the audacious suggestion that the person best poised to do so is Joseph Lieberman. He is almost uniquely positioned to be taken seriously. It would, I strongly suspect, assure his re-election (by bringing back at least some now-disgruntled Democrats), and the Republicans could scarcely turn around and accuse him of being a softie. He doesn't even have to promise to vote against the final bill. For all I care, he can say that he is inclined to support it, but only AFTER THE ELECTION. All that he needs to say is that rushing to pass the bill before it is genuinely scrutinized is not the way a respectable country makes such fundamental decisions about its core values.

I am genuinely curious whether the right-wing critics who post on Balkinization really believe that this IS a model of legislative deportment. Do they believe that the American Enterprise Institute is harboring a dangerous radical in its midst named Norman Ornstein and that he should be fired for expressing dismay about the way Congress is behaving?

On the way to a banana republic

Sandy Levinson

Rick Klein has a story in today's Boston Globe, tellingly titled "Congress in Dark on Terror Program," that notes that almost no members of Congress have the foggiest idea what is actually covered by the new "anti-terror" legislation being rammed through the Congress as part of the desperate effort by the Bush Administration to limit Republican losses in the forthcoming elections. ``'I don't know what the CIA has been doing, nor should I know,' said Senator Jeff Sessions, an Alabama Republican." This is par for the course. ``'You're not having any checks and balances here,' said Norman J. Ornstein, a resident scholar at the conservative American Enterprise Institute. 'It sure doesn't look to me as if they stood up and did anything other than bare their teeth for some ceremonial barking, before giving the president a whole lot of leeway. I find it really troubling.'"

This is not the way a serious legislature would operate, but who really believes any longer that we have a serious legislature? What we have is a dominant party (it is a misnomer to describe the Republicans in the Senate as the "majority" inasmuch as Democratic candidates over the past three elections cycles have received 3,000,000 more votes than their Republican counterparts; the "majority" is an artifact of our indefensiblly apportioned Senate) that operates by the American equivalent of the fuhrer-prinzip, and an "opposition party" that has no discernible backbone, as Mark Graber notes.

Madisonian democracy, r.i.p., since we sure as hell have nothing resembling it now.

Oh, Well, That Explains It

Marty Lederman

Courtesy of the New York Times, here's your very own handy-dandy pocket-sized flow chart for understanding what the "compromise" legislation would, and would not, prohibit.

And now, just for kicks, compare that to this alternative description of what the law forbids:

"[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [detainees]: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."

Which statement of the law is more "vague" and ambiguous?

Which gives the CIA more "guidance"?

Which is more informative on the question of whether it's lawful to leave a prisoner to stand naked in a cell kept near 50 degrees, during which time he is doused with cold water, or to force a prisoner to stand, handcuffed and with his feet shackled to an eye bolt in the floor, for more than 40 hours?

WWOS? (What would Orwell say?)

Clarification of What the War Crimes Amendment Would (Not) "Authorize"

Marty Lederman

In today's New York Times, I'm quoted as saying that the Administration "appear[s] to have negotiated a statutory definition of cruel treatment that doesn't cover the C.I.A. techniques," and that the negotiators "purport to foreclose the ability of the courts to determine whether [such techniques] satisfy the Geneva obligations." All that is true enough (although even this definition of "cruel treatment" obviously covers the "alternative" CIA techniques in at least some circumstances).

The lead-in sentence to this quotation, however, also characterizes me as saying that "the bill continued to allow the harsh treatment of detainees by the Central Intelligence Agency." This isn't a direct quote, and I certainly did not mean to convey any such thing. As longtime readers here know, my unequivocal view has been and continues to be that the CIA techniques such as Cold Cell, Long Time Standing, threats, stress positions, and waterboarding, are currently unlawful, because, among other things, they are "cruel treatment" and (sometimes) "torture" that Common Article 3 prohibits. Because the bill does not purport to supersede or override our obligations under Common Article 3 -- indeed, by everyone's lights, that indisputably was the principal concession that the White House made to the Senators -- those techniques would remain unlawful, even if the bill should be enacted. (I'm probably guilty of imprecision, and hyperbole, that might have led some readers to think otherwise, such as in my provocative headline the other night: "U.S. to be First Nation to Authorize Violations of Geneva." If so, my apologies. I think it is clear that the U.S. will be the first nation to formally "authorize" Geneva violations, when the Bush Administration construes this bill (if enacted) to permit the CIA techniques. But it would remain the case that the Geneva Conventions do, in fact, prohibit such techniques, which means they should continue to be unlawful.)

The serious problem with the bill, as I've discussed, is that it would define "cruel treatment" for purposes of the War Crimes Act in a confusing and inadequate manner that could readily be construed not to cover some or many of the CIA techniques. More to the point, numerous Bush officials' statements over the past 48 hours indicate that the Administration has already construed the definition in exactly that way, and that, in its view, this means not only that the CIA techniques would not be "war crimes," but also that they would not be "cruel treatment" under Common Article 3 by virtue of that statutory definition.

This conclusion demonstrates the terrible mischief of this "compromise," but it's substantively wrong. I don't know whether and to what extent McCain, et al., intended the definition of "cruel treatment" in the proposed War Crimes Act amendment to cover the CIA techniques. If McCain and other Senators do think such techniques are covered by that language, it would behoove them to say so publicly, and to explain how the proposed WCA should be construed to cover such techniques, so as to counter the Administration's manifest contrary reading. Here's what I wrote yesterday:

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.
If the Senators do not do so, it seems clear from what we've already seen that the Bush Administration lawyers will instruct the CIA that such techniques are not "cruel treatment" (even though under anyone's ordinary understanding of that term, they would be).

The Administration has been suggesting that it would somehow be inappropriate for the legislation, or the Senators, to say specifically which techniques the law would prohibit, i.e., that the law must remain so opaque that the Congress and the public don't have any idea what it does and does not prohibit. Think about that. As I say in a quote in today's Boston Globe, that's an absurd notion. After all, for many decades the U.S. Code has specified many things that are out-of-bounds for intelligence operations and armed conflict more broadly. And the Army Field Manual has for many decades provided detailed explanations of the techniques that Army interrogators may use. The newly revised Manual specifies in some detail a whole series of things that are categorically off the table for interrogations of detainees in military custody (including CIA interrogations of such prisoners). And section 8 of the "compromise" legislation itself would specify many things that would be unlawful war crimes. The problem is that it stops short of specifying the "alternative" CIA techniques. Senators McCain, et al., do not need to, and they probably should not, publicly reveal the extent to which, or circumstances under which, the CIA makes use of lawful techniques. But of course the Congress can and should specify which techniques are unlawful, if for no other reason than that it would be irresponsible for legislators to vote on a bill without having a clue what it does and does not prohibit.

But even if McCain and the legislative history do not provide any such contrary construction, and the War Crimes Act definition in the draft could be construed not to cover the CIA techniques, that would not make such techniques lawful, let alone "continue" to allow them to be used. They would, in fact, remain "cruel treatment," prohibited by Article 3(1)(a) of the Geneva Conventions. The problem, of course, is that the Administration will view -- and is viewing -- the bill as a green light to misconstrue the Geneva Conventions not to prohibit such conduct.

And, worse yet, the bill would attempt to foreclose any judicial review of whether that implausible interpretation is correct, not only by repealing the habeas rights of aliens detained overseas and at GTMO, but also by purporting to prevent any litigants, in any court proceeding, and for any reason, from invoking (and thus asking the courts to construe) any provision of the Geneva Conventions, even when such provisions might determine the outcome of the judicial proceedings in question. By thus purporting to immunize the Executive's (mis)reading of the law from any judicial oversight (a move that would raise serious constitutional questions), the bill would give the Adminisration assurance that it can mangle the interpretation of Geneva with impunity, and require the CIA to do likewise.

That's why this bill is so pernicious -- not because it would "continue to allow harsh treatment" of detainees, but because it will encourage the CIA to engage in such harsh treatment even though it remains illegal.

Friday, September 22, 2006

Text of Current Bush-Senate Compromise Bill

JB

Here is the latest version of the Military Commission Bill, including all of the compromises agreed to by the Administration and Senators McCain, Graham, and Warner. The worst parts begin on p. 81, eliminating the writ of habeas corpus, denying anyone the right to invoke rights guaranteed by Geneva in judicial actions, prohibiting the use of any foreign sources in construing the meaning of the Geneva Conventions, proclaiming that the President is the authoritative source of the meaning of Geneva with respect to the War Crimes statute, amending the War Crimes statute with language that allows the President to continue to engage in torture-lite (after all, he is now the authoritative source of its meaning), and finally, making all these amendments retroactive to November 26th, 1997 (i.e., well before September 11th, 2001. I wonder what led to this particular change?)

This is a bill that all Americans can truly be ashamed of. And it has been given to us courtesy of our elected leaders, the party of Torture-lite.

I blame our leaders. But I also recognize that we Americans bear some measure of responsibility as well. We failed to speak out when the news first leaked out that our forces were engaged in torture and repeated acts of cruelty, and we failed to speak out when further revelations disclosed that our leaders had actually authorized some of it-- and turned a blind eye to the rest. We were told, again and again that this was happening, and we didn't protest. We didn't show our leaders that we cared about the corruption of American values. The reason why the President and his Administration are daring to offer this bill now is that they believe that we Americans will not punish them politically for doing it. Quite the contrary: they believe that we Americans will think them strong and courageous and forceful for doing so.

They think that we Americans will actually reward them at the polls for legalizing torture.

That is one of the most chilling things about this entire episode. Have we become so complacent as a country, so easily lied to, that our leaders now think that they can legalize torture before our very eyes and that we will actually thank them for doing so?

This bill surfaces just as Jews around the world are ready to begin the High Holy Days, celebrating a new year, and asking for God's forgiveness and atonement for our sins.

This year, I think we in America have a great deal to ask God to forgive us for.

The burning question

David Luban

The burning question is: What did the Bush administration do to break John McCain when a North Vietnamese prison camp couldn’t?

Could it have been Ego Up? I’m told that Ego Up is not possible with a United States Senator. Come to think of it, that also rules out Ego Down. Fear Up Harsh? McCain doesn’t have the reputation of someone who scares easily. False Flag? Did he think they were sending him to the vice-president’s office? No, he already knew he was in the vice-president’s office. Wait, I think I know the answer: Futility – which the Army’s old Field Manual on interrogation defined as explaining rationally to someone why holding out is hopeless. In this case, the explanation might have been that the Bush lawyers would successfully loophole any law McCain might write, so why bother? Yes, "Futility" might have done the trick.

How else can we explain McCain’s surrender on the torture issue, one on which in the past he has been as passionate as Lindsey Graham was on secret evidence?

Marty’s posts here and here have explained some of the detailed points of capitulation, but there are others. The fact is, virtually every word is a capitulation, including "and" and "the". Here are three points that seem specially significant. (Perhaps the most significant is stripping habeas jurisdiction from the courts; but I won't consider that here.)

GOOD-BYE, INTERNATIONAL LAW

1. Consider, for example, section 8(a)(2): "The provisions in [the War Crimes Statute], as amended by this section, fully satisfy the obligation...for the United States to provide effective penal sanctions for grave breaches which are encompassed in Common Article 3 in the context of an armed conflict not of an international character. No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection 2441(d)."

That means the customary international law of war is henceforth gone in the United States – ironically, to say the least, because it was the U.S. Army’s Lieber Code that forms the basis for the Law of Armed Conflict (LOAC) and which launched the entire world-wide enterprise of genuinely international humanitarian law. Ironically as well, because our own military has taken customary LOAC as its guide, and used it to train officers and interrogators. Apparently there is no need to do that anymore, at least when it comes to war crimes. Goodbye, International Committee of the Red Cross; the Swiss can now go back to their fondue and cuckoo clocks. (Those who, like me, shelled out over $400 for the ICRC’s three-volume treatise on Customary International Humanitarian Law can try to sell it on E-Bay.) Goodbye, jurisprudence of the Yugoslav tribunal, which the United States was instrumental in forming.

GOOD-BYE, NUREMBERG

And goodbye Nuremberg. September 30 and October 1 mark the sixtieth anniversary of the Nuremberg Tribunal’s judgment. I have recently been reading Telford Taylor’s superb Anatomy of the Nuremberg Trials. One thing that absolutely leaps out of the opening chapters is the burning desire of the United States to create international law using these trials. Great Britain initially opposed the trials and preferred simply to shoot the top Nazis, out of fear that they would use the trials for propaganda. Stalin favored trials, but only to establish punishments, not guilt; like Great Britain, he thought that punishing the top Nazis should be a political decision. The trials happened only because the United States insisted on them, for purposes of establishing future law – a task that summary justice at executive say-so could never do.

At the London Conference that wrote the Nuremberg Charter, France and Russia both objected to criminalizing aggressive war for anybody but the Axis countries. Supreme Court Justice Robert Jackson, the American representative, insisted that creating universally binding international law was the prime purpose of the Tribunal. (See Taylor, pp. 65-67.) A compromise left the international status of Nuremberg law ambiguous – the Tribunal’s jurisdiction covered only the Axis countries, but nowhere does the Charter suggest that the crimes it was trying were only crimes if the Axis committed them. Because of this ambiguity, the status of the Nuremberg principles as international law was not established until 1950, when the United Nations General Assembly proclaimed seven Nuremberg principles to be international law.

Well, forget all that. The Nuremberg Principles, like the entire body of international humanitarian law, will have no purchase in the courts of the United States. Who cares whether they were our idea? Principle VI defines war crimes as "violations of the laws or customs of war, which include, but are not limited to,...ill-treatment of prisoners of war." Forget "customs of war" – that sounds like customary international law, which has no place in our courts. Forget "ill-treatment" – it’s too vague. Take this one: Principle II, "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law." Section 8(a)(2) means that we couldn’t care less about that idea. Or Principle IV: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." Moral, shmoral. The question is, do you want the program or don’t you?

JURISPRUDENCE OF PAIN, PAIN OF JURISPRUDENCE

2. The Nuremberg trials presupposed something about the normal human conscience: that moral choice doesn’t take its cues solely from legalisms and technicalities. The new bill takes the opposite stance: technicality triumphs over conscience and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain. It distinguishes "severe pain" – the hallmark of torture – from (merely?) "serious" pain – the hallmark of cruel and degrading treatment, usually thought to denote mistreatment short of torture. But then it defines serious physical pain as "bodily injury that involves...extreme physical pain." To my untutored ears, "extreme" sounds very similar to "severe" – indeed, it sounds worse than severe. (That’s why they call it "extreme". Doh!) But in any case, it certainly sounds worse than "serious". And you thought that the Office of Legal Counsel had lost its marbles when it issued the original torture memo, with its "organ failure or death" definition of "severe pain," drawn from a Medicare statute. The OLC lawyers must be rubbing their hands together in anticipation – clearly, they have some finger-lickin’-good opinion writing ahead of them.

LIFE IMITATES ART

3. And then there is section 8(3), which states that "the President has the authority for theUnited States to interpret the meaning and application of the Geneva Conventions," and in section (B) makes it clear that his interpretation "shall be authoritative (as to non-grave breach provisions)."

On August 1, 2006, the satirical newspaper The Onion ran a story headlined "Bush Grants Self Permission to Grant More Power to Self." It began: "In a decisive 1–0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers." And it ended thus: "Republicans fearful that the president's new power undermines their ability to grant him power have proposed a new law that would allow senators to permit him to grant himself power." How life imitates art! In the end, the three courageous Republican mavericks didn’t want the President unilaterally twisting Geneva until it screamed. Now it turns out that the principle they were fighting for was Congress’s prerogative to grant him the unreviewable power to do so.

Is John McCain a tragic figure?

Sandy Levinson

I frankly do not know what to do with regard to John McCain. There are many politicians I feel comfortable denouncing, in both parties, but McCain isn't really one of them. As one of the respondents to one of my earlier posts argued, he IS a genuine hero in a way that is almost unfathomable: It has nothing to do with the fact that he fought in Vietnam, a war that I opposed, but, rather, the way he conducted himself after being captured and released. Whatever the cliched "grace under pressure" is, he demonstrated it. But I also give McCain immense credit for his by all accounts genuine refusal to demonize critics of the war (or any other of his political opponents). I recall being immensely moved by a story in The New Republic about his befriending in a very deep way someone who had been a severe critic of the war, and I believe that speaks tons about the man's basic decency. Although, as a partisan Democrat, I'd never vote for him for the presidency, I would not quake at that prospect, given his demonstrated willingness, which I doubt would vanish in his presidency, to reach out to Democrats and genuinely work with them. He would also be way too old, frankly, to be a plausible candidate for re-election in 2012, which might further speak in his favor as a transitional figure from the putrid and mendacious years of the Bush Administration.

In any event, one could not even raise the possibility of McCain's being a tragic figure if one didn't recognize something special in his stature. Some people may have the same view of Colin Powell. Powell's great flaw is loyalty to people who don't deserve it, but, perhaps, that's just what we expect out of the military. But I'm not sure that McCain's flaw, in the past couple of years, derives from what, in other contexts, might be most noble about him. I find it hard to credit some of his recent conduct as due to much more than his desire to gain sufficient support from the Bush base (and, of course, George W. Bush and Karl Rove themselves) to become the Republican nominee and President in his own right.

I recognize that there is a real debate going on as to whether he really and truly won something from the Administration with regard to the "compromise." It's no small matter if the Administration genuinely has pulled back from waterboarding et al. as acceptable procedures of interrogaton. I tend to share Marty's skepticism about whether the Bush Administration will ever really make concessions on anything they deem important (and within their view of the President's Article II powers), but perhaps the Administration really means it this time, unlike the earlier McCain Amendment, which seems now to be full of sound and fury but signifies little or nothing once one adds in the signing statement. But can he really be comfortable with stripping courts of any jurisdiction at all even to determine whether there is sufficient ground to believe that someone being held is indeed "the worst of the worst"? Perhaps he is, and I, like too many others, have more esteem for him than he deserves. But I wish I believed that he was still the "straight-talking" politico of 2000 instead of what I fear he has become, which is a willing enabler for what is certainly the worst administration since World War II and is perhaps worst administration in the past 150 years.

The Coming Democratic Debacle

Mark Graber

Contrary to conventional wisdom, 2006 is shaping up as a Democratic debacle for some reasons suggested by Sandy's last post. The debacle will not be that Democrats lose seats, but that they do not gain nearly the number of seats that they might have, given that 2006 is quite clearly a bad year to be a Republican. Rather than run, as Republicans did in 1994, as a party committed to a particular program, Democrats are running as the party not as bad in vaguely specified ways as the Republicans. This leaves every Democratic candidate highly vulnerable to the dominant Republican strategy, which is to say, whatever you think of Republicans nationally, the particular Republican in your district or state is not so bad and, more importantly, the Democrat in your district or state has real weaknesses. Democrats are poorly positioned to defeat these personal attacks because the only thing they presently stand for is not being Republicans. Of course, they wink at people like me with the message that there will be less torture if they are elected, but the truth is that no one knows what their commitments are, other than to low risk political strategies.

At the heart of this strategy is a question of party leadership. Republicans could not gain control of Congress under a leadership that was content to declare they weren't as bad as the Democrats. What Republican leaders could do with such a strategy is maintain their leadership positions in the Republican party, positions that had a good many perks. A party coup d'etat was necessary for victory in 1994. Alas, no coup seems on the wings for the Democrats. Playing it safe is the best strategy for Hilliary Clinton, Nancy Pelosi, John Kerry, Joe Biden and the rest. They get reelected, and when the Republicans temporarily collapse, they might even win a presidency or two. But what is in the interest of the Democratic leadership is no longer in the interest of the party. Not every year is going to be a bad year for Republicans. And when there is a better slate of GOP candidates in 2008 headed by a more attractive presidential aspirant, Democrats are going to understand that their leadership is employing the strategy of a permanent minority party, that majority parties stand for something, and that Democrats missed a chance to become a majority party by employing the safest possible strategies in 2006.

Legal Realism 101 and the McCain Capitulation

Sandy Levinson

One of the first things contemporary law students learn is that one cannot separate "rights" from "remedies." This basically goes back to Oliver Wendell Holmes' argument, made most concisely in "The Path of the Law" (1897) that a "bad man" interested in knowing what "the law" is will be concerned not with "the law on the books" (Roscoe Pound's term), but, rather "the law in action" (ditto), which means, practically speaking, a "prediction" that the iron fist of the state, usually operating through courts, will be brought to bear if the "bad man" violates the law. If there is in fact no iron fist, then, for the "bad man" at least, there is no law, for there is no cost at all to violating it and the "bad man," by Holmesian definition, is a pure Chicago-type economist concerned only with calculation of costs (the "payment" exacted by the state) and benefits (the gains for one's actions).

John Marshall, in that chestnut of all American constitutional law cases, also recognized the importance that remedies exist for the denial of rights, though, ironically in the present context, he said that it was unconstitutional for Congress to give the Supreme Court jurisdiction to hear the case. Now, of course, the issue is whether Congress can simply strip courts of jurisdiction, forever.

So now we have a disgusting capitulation by the almost-tragic figure of John McCain, whose near-nobility has been thoroughly corrupted by his desire to be President (though there's no real doubt he'd be a far superior President to the incumbent) that removes any real prospect of a remedy for those tortured by the United States. No serious person could possibly believe that the US will ever actually prosecute any member of the CIA who engages in tortue--and we've know for at least two years now that the OLC memos are all about the CIA and not, in any serious way, about the military--and the capitulation deprives anyone victimized by the United States of a day in court. (And, of course, even if someone can get to court, as did the Canadian Mr. Amar, craven judges will allow the mantra "state secrets privilege" to trump any claim of right. So much for the "Equal Justice Under Law" carved over the US Supreme Court.)

So are we on our way toward an American versio of what Ernst Fraenkel termed "The Dual State" (1941), in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy (at least not until Nuremberg) for anything the regime did? No, I don't think the Bush Administration should be compared with the Nazis, but, as I've been repeatedly arguing vis-a-vis Carl Schmitt, I believe that we ignore the legal thinking and analysis that took place during Weimar and its aftermath at our peril. It is no great compliment to say that we are, as yet, nowhere near the Nazis. It should be enough to realize that the often brilliant analysts responding to the great crisis in their personal and professional lives may have something to teach us today about how political institutions operate under stress (and where demagogic and opportunistic politicians realize that there are potential gains to maximizing public fears of the Other).

This so-called "compromise" means, purely and simply, that we don't even profess to take seriously the minimal conditions for "the rule of law" with regard to those determined, often by fiat judgment, to be "the worst of the worst." What is even more dispiriting is that there is no reason to believe that the Democrats will defeat this disgrace, as they could through a filibuster that would simply delay its passage beyond the November elections, the whole point of this charade, because they are fearful of being tarred as "friends of the terrorists." There is, that is, no "opposition party" in America with regard to one of the deepest issues of our time. THAT is George W. Bush's biggest victory, helped along by Tom Daschle's (and John Kerry's and Hillary Clinton's etc.) absolutely disastrous decision in 2002 to write Bush a blank check on Iraq in order to focus the attention of the American electorate on prescription drugs for the elderly. And not a single prominent Democrat, of course, responded to the articles in the Washington Post, New York Times, Wall Street Journal, and the Economist, beginning in December 2002, that made it very clear that the US was violating the Geneva Conventions and engaging in what could only be called "torture." Denouncing Abh Ghraib was a cheap, and basically irrelevant, gesture, since what went on there a mere sideshow that evidenced criminal negligence on the part of the Bush Administration but had nothing to do with the CIA's "professional" interrogation practices or "rendition." (You may recall that John Kerry said literally not one word about such issues during his entire campaign.)

George Bush has fundamentally reshaped the "conventional wisdom" of American political life in a way that most presidents can only dream of. Ronald Reagan elicited only agreement, at least rhetorically, that "the era of big government is over." George Bush has elicited agreement that "those claiming to have been tortured by the United States have no rights that the United States is bound to respect" in any ordinary legal sense, as by having to show up in court. America will be paying for that reshaping for many, many years to come.

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.