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


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.)


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.


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?


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.


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.

Thursday, September 21, 2006

At least he's principled about it.


Senator George Allen isn't the only politician to be surprised about his religious heritage. Yesterday former First Lady Barbara Bush revealed to her son George that she had been raised as a Muslim. The President immediately went to Congress and demanded the right to waterboard himself.

Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva

Marty Lederman

I hope that that headline is a gross exaggeration, but based on a few quick seconds perusing the "compromise" on Common Article 3, I'm afraid it's not. [The Administration appears to agree. Stephen Hadley was crowing to reporters within minutes that the bill would authorize the CIA "program" to "go forward." And a "senior administration official" -- apparently Dan Bartlett -- told the Washington Post "that Bush essentially got what he asked for in a different formulation that allows both sides to maintain their concerns were addressed. 'We kind of take the scenic route, but we get there,' the official said."] [NOTE: I will be updating this post as we learn more, and if I have any time to parse the language more closely. I would dearly love if my initial impression -- and Hadley's -- is proven to be dead wrong. So I sincerely invite folks from the Senate staffs and elsewhere to write in with comments and corrections. The fine and careful folks over at Human Rights First are painting it as a significant victory for McCain, going so far as to argue that "the language in today’s agreement 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 would really like this to be true. But, as of now, at least, I don't quite see it. And, what's far more important, obviously the Administration doesn't see it that way, either. Am I missing something obvious? Which provisions of the new WCA, exactly, would prohibit stress positions and induced hypothermia -- not to mention sleep deprivation and threats?]

[P.S. Thanks to Bobby Chesney for the clean link. And here is a link to the Agreements on Classified Information, Self Incrimination and Coercion, and Hearsay, in military commission trials.]

Language below. It's not subtle at all [UPDATE: The way in which the bill excludes the CIA techniques from "cruel treatment" is rather subtle, and important: I discuss it here]. It only takes 30 seconds or so to see that the Senators have capitulated entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States," except that the bill itself would define certain "grave breaches" of Common Article 3 to be war crimes. Some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at OLC -- you know, those who concluded that waterboarding is not torture -- will come up with something. After all, the Administration is already on record as saying that the CIA "program" can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.

[UPDATE: As I explain here, on closer inspection the more serious problem is not so much the delegation of some unreviewable interpretive authority to the President (troubling though that is), but instead that the legislation itself would define "cruel treatment" far too narrowly, so as apparently to exclude the CIA's "alternative" techniques, no matter how cruel they are in fact. I hear word that Senator McCain thinks the bill's definition of "grave breaches" of Common Article 3 covers the "alternative" CIA techniques. I hope he can make that interpretation stick somehow, but on my quick [first two] readings of the language, it still seems to me as if it's carefully crafted to exclude the CIA techniques. See, most importantly, the limiting language defining "serious physical pain or suffering," which is carefully drafted to exclude the CIA techniques such as Cold Cell and Long Time Standing.]

And then, for good measure -- and this is perhaps the worst part of the bill, for purposes going far beyond the questions of torture and interrogation -- section 7 would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto 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." [UPDATE: I've heard some people argue that this language would retain the power of courts to construe Geneva in a criminal proceeding. That remains to be seen (the language is not clear). But even if that's so, it's not at all obvious how or why the question of the meaning and application of Common Article 3 would ever be one that a court would have occasion to resolve in a criminal proceeding.]

If I'm right, and if this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.

[UPDATE: In the post above, I tentatively conclude that what's most alarming and radical about the "compromise" is the statutory definition of "cruel treatment," and the foreclosure of both judicial review and any judicial consideration of any question dealing with Geneva interpretation.]


Here's the language:



(a) IN GENERAL. No person may invoke the Geneva Conventions or
any protocols thereto 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
partyas a source of rights, in any court of the United States or its
States or territories.

(b) GENEVA CONVENTIONS DEFINED. In this section, the term "Geneva
Conventions" means

(1) the Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, done at Geneva August 12,
1949 (6 UST 3217);

(2) the Convention for the Amelioration of the Condition of the
Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done
at Geneva August 12, 1949 (6 UST 3217);

(3) the Convention Relative to the Treatment of Prisoners of War,
done at Geneva August 12, 1949 (6 UST 3316); and

(4) the Convention Relative to the Protection of Civilian Persons
in Time of War, done at Geneva August 12, 1949 (6 UST 3516).


(a)(1) IN GENERAL. The acts enumerated in subsection 2441(d) of
title 18, United States Code, as amended by subsection (b) of this
section, and in subsection (c) of this section, constitute violations of
Common Article 3 of the Geneva Conventions prohibited by United States

(2) PROHIBITION ON GRAVE BREACHES. The provisions in section 2441
of title 18, United States Code, as amended by this section, fully
satisfy the obligation under Article 129 of the Third Geneva Convention
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).

Constitution and by this section, the President has the authority for the
United States to interpret the meaning and application of the Geneva
Conventions and to promulgate higher standards and administrative
regulations for violations of treaty obligations which are not grave
breaches of the Geneva Conventions.

(B) The President shall issue such interpretations by Executive
Order published in the Federal Register, and such orders shall be
authoritative (as to non-grave breach provisions) as a matter of United
States law, in the same manner as other administrative regulations.

(C) Nothing in this section shall affect the constitutional
functions and responsibilities of Congress and the judicial branch of
the United States.

Section 2441 of title 18, United States Code, is amended

(A) in subsection (c), by striking paragraph (3) and
inserting the following new paragraph (3):

(3) which constitutes a grave breach of Common Article 3 as
defined in subsection (d) when committed in the context of and in
association with an armed conflict not of an international
character; or;

(B) by adding at the end the following new subsection:


(1) PROHIBITED CONDUCT. In subsection (c)(3), the term
˜grave breach of Common Article 3" means any conduct (such conduct
constituting a grave breach of common Article 3 of the
international conventions does at Geneva August 12, 1949), as

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

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

person who subjects, or conspires or attempts to subject,
one or more persons within his custody or physical control
to biological experiments without a legitimate medical or
dental purpose and in so doing endangers the body or health
of such person or persons.

(D) MURDER. The act of a person who intentionally
kills, or conspires or attempts to kill, or kills whether
intentionally or unintentionally in the course of committing
any other offense under this section, one or more persons
taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or any
other cause.

(E) MUTILATION OR MAIMING. The act of a person who
intentionally injures, or conspires or attempts to injure,
or injures whether intentionally or unintentionally in the
course of committing any other offense under this section,
one or more persons taking no active part in the
hostilities, including those placed out of combat by
sickness, wounds, detention, or any other cause, by
disfiguring the person or persons by any mutilation thereof
or by permanently disabling any member, limb, or organ of
his body, without any legitimate medical or dental purpose.

act of a person who intentionally causes, or conspires or
attempts to cause, serious bodily injury to one or more
persons, including lawful combatants, in violation of the
law of war.

(G) RAPE. The act of a person who forcibly or with
coercion or threat of force wrongfully invades, or conspires
or attempts to invade, the body of a person by penetrating,
however slightly, the anal or genital opening of the victim
with any part of the body of the accused, or with any
foreign object.

(H) SEXUAL ASSAULT OR ABUSE. The act of a person who
forcibly or with coercion or threat of force engages, or
conspires or attempts to engage, in sexual contact with one
or more persons, or causes, or conspires or attempts to
cause, one or more persons to engage in sexual contact.

(I) TAKING HOSTAGES. The act of a person who, having
knowingly seized or detained one or more persons, threatens
to kill, injure, or continue to detain such person or
persons with the intent of compelling any nation, person
other than the hostage, or group of persons to act or
refrain from acting as an explicit or implicit condition for
the safety or release of such person or persons.

(2) DEFINITIONS. In the case of an offense under subsection
(a) by reason of subsection (c)(3)

(A) the term ˜severe mental pain or suffering" shall
be applied for purposes of paragraphs (1)(A) and (1)(B) in
accordance with the meaning given that term in section
2340(2) of this title.

(B) the term ˜serious bodily injury" shall be applied
for purposes of paragraph (1)(F) in accordance with the
meaning given that term in section 113(b)(2) of this title.

(C) the term ˜sexual contact" shall be applied for
purposes of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title.

(D) the term ˜serious physical pain or suffering
means bodily injury that involves

(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.

(E) the term ˜serious mental pain or suffering" shall have the same meaning as ˜severe mental pain or suffering" as such term is defined in 18 U.S.C. § 2340(2), except that the term "serious" shall replace the term "severe" where it appears in such definition, and except that, as to conduct occurring following the date of enactment of the Military Commission Act of 2006, the term "serious and non-transitory mental harm (which need not be prolonged)" shall replace the term "prolonged mental harm" in such definition.

specified for the conduct stated in subparagraphs (D), (E), and
(F) or paragraph (1) precludes the applicability of those
subparagraphs to an offense under subsection (a) by reasons of
subsection (c)(3) with respect to

(A) collateral damage; or

(B) death, damage, or injury incident to a lawful

EXCHANGE. Paragraph (1)(I) does not apply to an offense under
subsection (a) by reason of subsection (c)(3) in the case of a
prisoner exchange during wartime.

(2) RETROACTIVE APPLICABILITY. The amendments made by this
section, except as specified in paragraph 2441(d)(2)(E) of title 10,
United States Code, shall take effect as of November 26, 1997, as if
enacted immediately after the amendments made by section 583 of Public
Law 105-118 (as amended by section 4002 of Public Law 107-273).


(1) IN GENERAL. No individual in the custody or under the physical
control of the United States Government, regardless of nationality or
physical location, shall be subject to cruel, inhuman, or degrading
treatment or punishment.

. The term "cruel, inhuman, or degrading treatment or punishment" in
this subsection shall mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

(3) The President shall take action to ensure compliance with this
subsection, including through the establishment of administrative rules
and procedures.

The Torture Chorus

Marty Lederman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That's comforting.

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

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

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

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

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

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

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

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

Instead, he responds that:

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

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

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

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

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

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

* * * *

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

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

But it certainly is revealing . . . .

Wednesday, September 20, 2006

Traditional Christian Values and Torture

Brian Tamanaha

The following statement was issued by a politically influential Christian organization run by Reverend Louis P. Shelton:

September 18, 2006 - Washington, DC -- The Traditional Values Coalition asked members of Congress to support President Bush's reform of prisoner treatment policies because "this is a war unlike any other we have fought -- the enemy is faceless and deliberately attacks the innocent."

TVC Chairman Rev. Louis P. Sheldon said American military and intelligence experts are hampered by a vague "outrages upon personal dignity" statement in Article Three of the Geneva Convention of 1950.

"We need to clarify this policy for treating detainees," said Rev. Sheldon. "As it stands right now, the military and intelligence experts interrogating these terrorists are in much greater danger than the terrorists. Civil suits against our military personnel are tying their hands as they try to get vital information which will save the lives of our young military people and the innocent."

"Our rules for interrogation need to catch-up with this awful new form of war that is being fought against all of us and the free world. The post -World War II standards do not apply to this new war.

"We must redefine how our lawful society treats those who have nothing but contempt for the law and rely on terrorizing the innocent to accomplish their objectives. The lines must be redrawn and then we must pursue these criminals as quickly and as aggressively as the law permits.

"And since this debate is, at its very core, about preserving the traditional value of prosecuting injustice and protecting the innocent, TVC will score this vote in both the House and the Senate. We encourage all of our supporters and affiliated churches to contact their elected representatives and let them know we support President Bush's efforts to update our methods of interrogating terrorist detainees in order to provide greater protection for our troops and the innocent."

It is strange--to put it politely--to see an avowedly Christian organization promote torture. Reverend Sheldon is correct that this debate is about preserving our traditional values, but he is on the wrong side.

Conservative Christian groups are a key block within the Republican political coalition, as everyone knows. If these groups took an agressive moral stance against torture, the Bush Administration might be given pause. The Traditional Values Coalition has chosen to do the opposite, throwing its weight behind torture, urging Christians to pressure their legislators to support toture.

This can't be right (although I'm not a Christian).

(And please don't characterize authorizing torture as a matter of "updating our methods"--that's scary doublespeak.)

Tuesday, September 19, 2006

Specter sees the light on the great habeas swindle


On this blog we've criticized Senator Specter's approach to the NSA wiretapping controversy repeatedly. But Senator Specter has now spoken out in a good and helpful way against the President's dreadful military commissions/torture-lite bill.

Specter has identifed a major problem with both the President's bill and the McCain-Graham-Warner bill: both bills eliminate the right of detainees to contest the legality and the conditions of their confinement through the ancient writ of habeas corpus.

It's important to understand that although Senators McCain, Graham and Warner are getting a lot of great press on their disagreements with President Bush, and are being widely championed as brave defenders of human rights, the bill they have authored in the Senate is not a good bill; it is merely less terrible than the one the President is pushing. The press has either been hoodwinked on this score or has been complicit in downplaying this aspect of their handiwork. I choose to believe that it is the former: hence this post.

In particular, the McCain-Graham-Warner bill, like the President's, would prevent anyone detained in Guantanamo Bay (or any other detention facility outside the U.S.) from challenging what has been done to them in court except as an appeal from the decision of a military commission.

That means that if the government decides never to try an individual before a commission, but just holds them in prison indefinitely, there is no way that they can ever get a hearing on whether they are being held illegally-- because they are not in fact a terrorist; or a hearing on whether they are being treated illegally-- because they have been abused or tortured or subjected to one of the Administration's "alternative sets of procedures"-- a.k.a. torture lite.

So if a person at Guantanamo Bay isn't in fact a terrorist and isn't a danger to the United States, but never is subjected to a military commission hearing, there is no way they can get out if the military wants to hold them. (There are a few exceptions to this statement, but even in those cases the scope of review is severely limited and may be of no real help). One expects that the military isn't going to make trials of people who aren't dangerous and aren't terrorists a major priority, because it wants to use the military commissions for those people whom it believes are the worst actors and for whom it has the most inculpatory evidence. Abolishing the right of habeas corpus has the perverse effective of stripping access to justice for those detainees who are most likely to be innocent and harmless, and therefore most deserving of access to the Great Writ of habeas corpus.

Similarly, if the Administration decides not to bring a particular detainee to trial before military commission but just use them as a source of information by repeatedly torturing them (or engaging in torture-lite-- remember, we don't torture!) there is no way for a person abused in this way to contest it and stop it, even if it violates the Geneva Conventions. That's because there's no verdict of a military commission to appeal, and there's no right to habeas. In addition, under both the Bush and the McCain-Graham-Warner provisions, there's no right for an individual to invoke the Geneva Conventions even if there was a judicial forum to contest the torture-lite, which, once again, there isn't.

So if the Administration abuses someone based on faulty evidence, and eventually figures out that they are harmless (compare the case of Maher Arar), the Administration has no incentive ever to bring that person before a military commission, because, of course, the person would likely be found innocent and in the process the fact of that person's mistreatment would come out. And because there would be no way for them to bring a writ of habeas corpus, they would rot in prison indefinitely.

This is a terrible solution for to how to deal with detainees. It punishes the innocent more than the guilty, and it deliberately looks the other way at possible prisoner abuse at Guantanamo and elsewere (and by now we have enough evidence to know that this is a serious problem.) It makes a mockery of America's promise to respect the Geneva Conventions, and it is deeply inconsistent with America's view of itself as committed to justice and the rule of law. Preventing people from challenging their abuse under American law and the Geneva Conventions undermines America's moral authority as much as the President's decision to amend the laws against torture themselves. And these jurisdictional provisions, I repeat, are in both the President's bill and the bill offered by Senators McCain, Graham, and Warner, who are currently being lionized by a press that thinks they are standing up for America's deepest values.

I've got news for you. If the McCain-Graham-Warner bill is passed in its present form, it will also undermine America's values. Because it will leave the innocent and the harmless, and those illegally abused but never brought to trial without a remedy.

It will perpetrate a mockery of justice.

Senator Specter has figured this out. And he should be commended for it.

The James Madison Hot Tub Was A Legitimate Research Expense


Colin Samuels remarking on my Top Ten Reasons President Bush Wants to Limit the War Crimes Act and the Geneva Conventions: "Up Next: Top Ten Reasons Professor Balkin Should Expect a Tax Audit"

John Marshall as a Sockpuppet

Sandy Levinson

As a relative amateur with regard to blogging, I was intrigued to discover the term "sockpuppet" in Deborah Solomon's interview in the Sunday Times Magaine with Lee Siegel concerning his fall from grace at the New Republic for blogging under a false name and praising his own work and attacking his detractors. Devotees will of course also recall John Lott's exposure for having done something similar.

Consider then that John Marshall, under the names "Friend of the Constitution" and "Friend to the Union" published extensive essays in the Philadelphia Union and Alexandria Gazette vigorously defending his opinion in McCulloch v. Maryland against critiques published, also anonymously, by William Brockenborough and, more seriously, Spencer Roane. Perhaps most interesting is Marshall's (anonymous) comment that though it is true that the Chief Justice "is a federalist . . . who was a politician of some note before he was a judge," critics of McCulloch should take into account that the decision was joined by "all the judges--four of whom have no political sin upon their heads;--who in addition to being eminent lawyers, have the greater advantage of being sound republicans."

Gerald Gunther discovered Marshall's essays some years ago and published them in a book. I was reminded of them in a fine new book, M'Culloch v. Maryland: Securing a Nation, by Mark R. Killenbeck of the University of Arkansas Law School, published by the University of Kansas Press. Killenbeck devotes a full chapter to the post-decision exchanges between Marshall and his critics.

In any event, it is simply false to argue, as Siegel seems to, that anonymous (and highly self-serving) sockpuppetry is somehow "caused" by the development of the blogosphere, even if it certainly makes it easier. But my question is this: If we are censurious of Siegel and Lott and other contemporary sock-puppets, then what view should we have of Marshall or of Walt Whitman? As one web site notes, "The 1855 publication of Leaves of Grass was heralded by anonymous reviews printed in New York papers, which were clearly written by Whitman himself. They accurately described the break-through nature of his "transcendent and new" work."

God helps those who help themselves, it is often said. Is it mandatory that one always be transparent in such self-help, or is sockpuppetry, at the end of the day, acceptable? Or is it simply that we today have a different view of such self-help (ah, moral relativism again rears its ugly head) and find objectionable today conduct that was perfectly all right in Philadelphia and Alexandria in 1819 and New York in 1851?

Incidentally, I am told that "Enraptured by Levinson" will shortly post a blog describing my new book "Our Undemocratic Constitution" as a "must read for every American." If you can't believe me, surely you should believe "enraptured by Levinson" :)

A Few Dirty Details About Our Corrupt Political System

Brian Tamanaha

Congressmen Bob Ney and Randy Cunningham, and a number of former legislative staff members, have admitted to corruption in connection with lobbyists, and face jail time. Other criminal investigations are still in progress. Nonetheless, the New York Times reported last week that no serious lobbying reforms will be enacted by the current Congress, despite all the talk about reform following the Abramoff scandal (see also).

We shouldn’t be surprised. It will take more than a few indictments of the sloppiest offenders to prompt reform of what has become a system of structural corruption. Consider the following details about our current political system.

Public records indicate that almost $2 billion was spent on federal lobbying in 2003; $2.1 billion in 2004; and in excess of $2.3 billion in 2005; and the amount keeps rising. Leaving aside outright criminal bribery, this money-laden attention, lavished on legislators and their staffs, takes several forms: making direct campaign contributions, sponsoring campaign fundraising events, providing contributions to third-party supporters (political parties, political action committees, mutually favored institutes or organizations), supplying supportive work (drafting desired legislation, administrative regulations, and briefing papers), funding or securing funding for trips at home and abroad for "informational" purposes (golf resorts being a favorite destination, along with Hawaii, Paris and Italy), subsidizing travel on private jets, supplying free social dinners and entertainment (including high-profile sporting events), employing spouses and close relatives as lobbyists or consultants, and offering the prospect of well-compensated future employment.

The effort by legislators to utilize the resources offered by lobbyists to advance their own agenda was refined in the "K-Street Project" (named after the main location of lobbying firms), undertaken by Congressman Tom DeLay following the Republican takeover of the House in the 1994 elections. DeLay informed trade associations and lobbying firms that they must fire Democrats and hire Republicans if they wished to have access to influential lawmakers. "We’re just following the old adage," he said unrepentantly, "of punish your enemies and reward your friends." DeLay’s goal was to secure a permanent Republican majority in the House, as well as to enhance his own grip on power, goals which could best be accomplished by controlling the money spigot. As an indication of his effectiveness, in the early 1990s, money from lobbyists was about evenly distributed between Democrats and Republicans; by the mid-2000s, this money went two to one in favor of Republicans.

The intimate mixing between politicians and lobbyists is extraordinary. Lobbyists have served as treasurers for the campaign committees of 79 legislators and for 800 political action committees since 1998, raising campaign funds for Democrats as well as Republicans. In the run up to an election, many lobbyists temporarily set aside lobbying to become campaign consultants for incumbents. After the election, they return to lobby the very legislators they helped to victory. Lobbyists held all of the top positions at the 2004 Republican National Convention.

Money has always influenced politics, of course, but there are numerous signs that the political culture has changed for the worse in recent years. Twenty years ago, an uproar ensued when it became public that Senator Lloyd Bensten held a breakfast meeting for lobbyists who contributed funds to his campaign; today lobbyists sponsor fundraisers for various senators and representatives every day that Congress is in session. Representative Roy Blunt became acting majority leader upon DeLay’s resignation; Blunt’s wife is a lobbyist for Philip Morris, which contributes substantial sums to his campaign, and he has built a network of connections with lobbyists. John Boehner, who bested Blunt in the contest to permanently replace DeLay as majority leader, was openly skeptical of calls for refrom. For years, Boehner ran a weekly meeting with a dozen top business lobbyists (called his "K-Street Cabinet"). Fourteen former Boehner staffers work as lobbyists, and Boehner says he "regrets" an incident in 1996 when he “handed out checks from tobacco interests to members of Congress on the House floor.” "Yes, I am cozy with lobbyists," Boehner admitted, "but I have never done anything unethical." It is virtually a prerequisite for the majority leader position to have developed an extensive networks of lobbyists, given that fellow members tend to back the person likely to provide them with future campaign support.

The money connection does not end with departure from office. In 2004, almost 250 former members of Congress and former heads of administrative agencies worked as lobbyists. Lobbyists who advocate for the airline industry, to offer one example, include ten former members of Congress, two former Secretaries of the U.S. Department of Transportation, and three high-ranking officials in the Federal Aviation Administration. Representative Billy Tauzin, who chaired a committee with oversight over pharmaceuticals and was a member of the committee that drafted the Medicare drug legislation—which pharmaceuticals vigorously supported—left Congress soon after the passage of the bill to become President of PhRMA (the pharmaceutical industry’s trade association) at a reported annual salary of $2 million.

This system reeks, and everyone knows it. A public poll found that 77% of respondents believe that reports of lobbyists bribing members of Congress are not isolated incidents, but are “the way things work in Congress.” We collectively shrug our shoulders in resignation and continue to vote for our current Representative and Senator (incumbents who raise the most money in a race win reelection more than 90% of the time). Even Senators caught with unseemly connections with Abramoff may hold on to their office. So nothing changes.

Can anything be done about this systematic corruption?

Here’s a partial solution: impose a five year ban against any member of Congress and their staff, and any of their immediate relatives, from working in any capacity for a lobbying firm upon departure from office (with the ban for relatives also applying while in office). This period is long enough that, if they are thereafter hired by a lobbying firm, it will be owing more their expertise than to their personal relationships or perceived influence (which is fleeting).

The legislators would have to enact this ban, and they have already shot down a proposal to double the current one year ban (and they have not seriously considered imposing restrictions on relatives), which does not bode well for the prospects of a 5 year ban. No doubt legislators will argue that this unfairly restricts them, their families, and their staff, from making a living, and that it will discourage good people from running for office or working in staff positions. But this is a cynical argument. Plenty of talented people who are committed to public service would be willing to take these positions even if they cannot easily cash in later. It bears remembering that only in the past decade has it become routine for members of Congress to go on to lobbying positions.

This admittedly unlikely proposal might have a shot if a nationwide—blog driven?—campaign developed in the coming election to get every candidate to make a public pledge to support a 5 year ban. Candidates who refuse to support the ban will look like they are seeking public office mainly for their own economic gain. People won’t be fooled by their excuses.

We must do something to reform this corrupt system. Urge your local House and Senate candidates to: “Pledge to Enact the 5 year Ban.”