Beware the "Augmented" McCain Amendment!

Marty Lederman

The Conference Committee that will consider and reconcile the Senate and House defense appropriations bills is scheduled to meet this coming week. The Senate bill contains the "McCain Amendment," which would prohibit all U.S. personnel from engaging in cruel, inhuman or degrading treatment of detainees -- i.e., engaging in conduct that would "shock the conscience" under Due Process Clause doctrine -- anywhere in the world.

It's increasingly clear that the strategy of McCain's opponents -- the Vice President and his congressional supporters -- will be to amend the McCain Amendment in the Conference Committee so as to exempt the CIA from the prohibition on cruel, inhuman and degrading treatment of detainees. The Senate delegation to the Conference Committee presumably will include three of the nine Republicans who voted against the McCain Amendment -- Ted Stevens, Thad Cochran and Kit Bond. A recent Congressional Quarterly article, reprinted here, reports Stevens -- who would "lead the Senate's conferees" -- as saying that "he can support McCain's language if it's augmented with guidance that enables certain classified interrogations to proceed under different terms." "'I'm talking about people who aren't in uniform, may or may not be citizens of the United States, but are working for us in very difficult circumstances,' Stevens said. 'And sometimes interrogation and intimidation is part of the system.'"

What this barely veiled statement means is that Senator Stevens will support inclusion of the McCain Amendment in the final bill only once it has been "augmented" to exempt the CIA from the prohibition on cruel, inhuman and degrading treatment. (Stevens's reference to persons who "may not be citizens of the United States, but are working for us" suggests that he also intends to include a carve-out for foreign nationals acting as agents of the CIA, such as the team of the CIA-sponsored Iraqi paramilitary squads code-named Scorpions.) If Stevens (read: Cheney) is successful in this endeavor, and if the Congress enacts the Amendment as so limited, it will be a major step backwards from where the law currently stands. This can't be overemphasized: If Stevens is successful at adding his seemingly innocuous "augment[ation]," it would make the law worse than it currently is.

Those wishing to learn all the details of why this is so are encouraged to read my previous posts (particularly those of January 8, 12, 18 and 25, and May 11) about how the Administration has construed numerous federal laws to make certain that the CIA is permitted to engage in cruel, inhuman and degrading treatment -- i.e., to engage in all forms of coercive interrogation short of the small category of conduct denominated "torture." Here's a quick synposis of why the Stevens "CIA carve-out" would make matters worse, the basic gist of which is this: Although the McCain Amendment would helpfully clarify and reaffirm some of the law applicable to military interrogations, it would not impose any substantive limitations on the Armed Forces that are not already in current law. The McCain Amendment would, however, emphatically reject the Administration's view that the CIA may engage in cruel, inhuman and degrading treatment in certain locations outside the U.S. -- a very significant development, but one that the Stevens "augmentation" would eviscerate.

The McCain Amendment has two provisions:

The first provision is, by its terms, limited to detainees in the custody or effective control of the Department of Defense (or in a DoD facility). It would provide that all such detainees could be subjected only to those interrogation techniques listed in the Army Field Manual on Intelligence Interrogation. This first provision would be a good and helpful clarifying statute, because it would once again signal to military personnel that there are established and uniform rules for interrogation and that such rules can be found in one place. But this first provision would not effectively prohibit cruel, inhuman and degrading treatment of military detainees, for two reasons. First, even though the current version of the Manual has long been understood to incorporate the most protective rules applicable to prisoners of war under the Third Geneva Convention, the Pentagon has recently concluded that the Manual actually authorizes degrading and humiliating treatment, such as having female interrogators physically seduce and taunt a Muslim detainee; forcing him to wear a bra and placing a thong on his head during interrogation; tying him to a leash, leading him around the room and forcing him to perform a series of dog tricks; stripping him naked; and pouring water on his head during interrogation 17 times. This interpretation of the Manual is preposterous; but nothing in the McCain Amendment would stop the Pentagon from adopting such a reading. Second, and more importantly, the McCain Amendment does not itself establish any substantive rules, because (as Senator McCain acknowledges) the Pentagon would be able to amend the Army Field Manual anytime it wishes. In fact, such an amendment is currently in the works, and the soon-to-be amended Manual will contain a "classified Annex" that apparently will permit coercive forms of interrogation of certain categories of detainees that the Manual has previously long prohibited.

The second, and more important, provision of the McCain Amendment is not limited to detainees in DoD custody. It would provide that "[n]o 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."

This provision would set a baseline prohibition for military interrogators -- but it would not materially alter the law under which such military personnel currently operate. The Uniform Code of Military Justice (UCMJ) already prohibits the Armed Forces from engaging in cruelty and maltreamtent, as well as assault and the threat of assault. Moreover, the federal assault statute (18 U.S.C. 113) prohibits assault within the special maritime and territorial jurisdiction of the United States; and this prohibition applies even outside the special maritime and territorial jurisdiction when committed by persons employed by or accompanying the Armed Forces (by virtue of the Military Extraterritorial Jurisdiction Act (MEJA)).

For approximately 14 months, from November 2002 until at least December 2003, the military acted on the view that it was not bound by such statutes, presumably based upon an OLC conclusion (in, e.g., a March 2003 memorandum of John Yoo) that such laws unconstitutionally impinge on the President's powers as Commander in Chief. Most of the atrocities within the military that have come to light -- including at GTMO and in Abu Ghraib -- occurred during this 14-month period. But it now appears that OLC rescinded its key advice in December 2003, and that subsequently the Administration has conceded that military personnel are bound by the UCMJ and these other federal statutes. It's unlikely that the McCain Amendment would go further to restrain the military than do these pre-existing statutes. And to the extent the Administration would continue to assert the authority of a Commander-in-Chief override, such a presidential override would also be asserted vis-a-vis the McCain Amendment.

But where the McCain Amendment truly would have bite is with respect to the CIA. That's because the UCMJ, the federal assault statute and the MEJA do not apply to the CIA's interrogation of detainees outside the U.S. and outside the special maritime and territorial jurisdiction of the U.S. -- i.e., at the "secret facilities" at which the CIA is detaining certain suspects. [UPDATE: An astute reader notes that in late 2001, the PATRIOT Act amended the SMTJ statute (18 U.S.C. 7) so that the definition now includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership." I'm not sure why this amended definition of the SMTJ wouldn't include CIA "special facilities" -- whatever and wherever they may be. And if the CIA "secret" facilities in foreign lands are covered as within the SMTJ, then I'm not quite sure how it is that DOJ could have given the CIA a green light to engage in, e.g., waterboarding (any version of it), or mock burial: Wouldn't such acts be unlawful assaults?]

Moreover, in a very important legal move, the Department of Justice has determined that the CIA also is not bound by the requirement of Article 16 of the Convention Against Torture that the U.S. act to prevent acts of cruel, inhuman or degrading treatment in any territory under U.S. jurisdiction -- because, in DOJ's (untenable but operative) view, Article 16 does not apply outisde the U.S.

What this means, as a practical matter, is that the Administration has given the CIA the green light to engage in all forms of coercive interrogation short of "torture" proper.

-- That's why, in the infamous 2002 "Torture Memo," OLC's objective was only to inform the CIA of what the federal anti-torture statute prohibited, and why OLC believed it could ignore all other legal constraints and specifically distinguish "torture" from conduct that is "merely" cruel, inhuman and degrading (DOJ having concluded that the CIA could employ the latter).

-- That's why, in his confirmation proceeedings, the Attorney General represented that "some" techniques from among waterboarding, use of dogs to induce stress, forced nudity, hooding, sensory deprivation, food and sleep deprivation, exposure to extreme temperatures, a face or stomach slap, the forcible injection of mood-altering drugs, mock executions, and threatening to send detainees to countries where they would be tortured, "might . . . be permissible in specific circumstances, if appropriately limited, depending on the nature of the precise conduct under consideration"; and why Judge Gonzaels could not ensure the Senate that reported practices such as forced enemas, infliction of cigarette burns, and binding detainees hand and foot and leaving them in urine and feces for 18-24 hours, are legally off-limits.

-- That's why, just a few weeks ago, Tim Flanigan (then the nominee to be Deputy Attorney General) wrote to the Senate that he was unwilling to say whether waterboarding -- "intentionally inducing a detainee's perception of suffocation" -- is unlawful, because that "depends on all of the relevant facts and circumstances."

-- That's why DOJ reportedly has informed the CIA that it may, outside the U.S., lawfully use extreme methods such as waterboarding, the threat of live burial, and threatening rendition to sadistic interrogators in other nations -- and why the CIA reportedly has used at least some of these techniques in its interrogations.

-- And that's apparently why the CIA believed that it was entitled, along with a small team of the CIA-sponsored Iraqi paramilitary squads code-named Scorpions, to assault a detainee with fists, a club, a length of rubber hose, and the handle of a sledgehammer. (Senator Stevens apparently intends to exempt foreign agents of the U.S. such as the Scorpions, from the McCain prohibition, too: they are, in his words, persons who "may not be citizens of the United States, but are working for us.")

The Congress has not, to this point, ever specifically approved of the Administration's view that the CIA is entitled to engage in cruel, inhuman and degrading treatment overseas (outisde the special military and territorial jurisdiction). Of course, that hasn't stopped the Administration from acting in accord with that legal conclusion -- but it has meant that the legal landscape is somewhat uncertain, and such uncertainty (in John Yoo's words) "muddies the water," which in turn may make the CIA somewhat more reticent about engaging in conduct that might, after all, be unlawful. [UPDATE: In the original posting, I added a parenthetical suggesting that a violation of the McCain Amendment would be a war crime. It wouldn't -- not, anyway, unless the conduct also violated Common Article 3 of the Geneva Conventions. Nevertheless, I assume the CIA would be unwilling to engage in conduct that is clearly prohibited by statute -- and apparently Vice President Cheney agrees, or else he wouldn't be fighting the McCain Amendment with such vigor.]

But if Senator Stevens has his way, and successfully exempts the CIA from the McCain Amendment's otherwise unequivocal ban on cruel, inhuman and degrading treatment, the Congress will for the first time have ratified the Administration's view that such cruel, inhuman and degrading treatment is not uniformly off-limits, and will have given a green light to the CIA to engage in such conduct. Moreover, as explained above, that very unfortunate result would not be offset by any meaningful improvement in the law as it applies to the Armed Forces.

Accordingly, it is imperative that those Senators and Representatives supporting the McCain Amendment must resist any effort to "augment" the Amendment with a CIA carve-out.
Posted 7:19 AM by Marty Lederman [link] (18) comments

CIA "Enhanced Interrogation Techniques" Revealed

Marty Lederman

On Friday, ABC News broke a very important story; and yet it seems that no one has noticed (or perhaps no one cares).

"Former and current intelligence officers and supervisors" described for ABC News six specific "enhanced interrogation techniques" that the CIA has approved for a dozen or so high-level Al Qaeda detainees incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe:

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.

2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the
treatment to a halt.

This story is notable for several reasons:

1. Confrmation that use of these techniques is formally approved at the highest level of the CIA: "According to the sources, when an interrogator wishes to use a particular technique on a prisoner, the policy at the CIA is that each step of the interrogation process must be signed off at the highest level -- by the deputy director for operations for the CIA."

2. The fact that several former and current CIA officers and supervisors are leaking CIA "methods" is newsworthy in and of itself. There's a very strong taboo against revelation of sources and methods within the CIA; such conduct could subject the leakers to severe discipline and even criminal exposure. Therefore it's virtually unheard of. These leaks -- together with recent leaks concerning the CIA's "black sites" where these interrogations occur, and about a CIA Inspector General report questioning the legality of these techniques -- indicate that there must be profound dissent within the agency on this issue, including on the question of the efficacy of such techniques: "[T]he debate among intelligence officers as to whether they are effective should not be underestimated." According to ABC News, the leakers "say they are revealing specific details of the techniques, and their impact on confessions, because the public needs to know the direction their agency has chosen."

3. The techniques were first approved in March 2002, at least four months before the infamous OLC "Torture Memo." This suggests that the CIA was willing to engage in such conduct before OLC signed off on it (in writing, anyway), and that OLC's advice was offered with respect to ongoing conduct. The general practice within OLC is not to opine on the legality of past or ongoing conduct within the Executive branch, because in such a case there could be an understandable inclination to skew advice so as not to conclude that Executive officials had been acting unlawfully. On the other hand, the Executive branch obviously needs to know if it has been acting unlawfully so that it can conform its practice to the law. Therefore it's often a tough call within OLC whether to give advice in situations such as this.

4. These techniques -- especially Nos. 4 through 6 -- would very likely be deemed conduct that "shocks the conscience," and that therefore would be forbidden by the McCain Amendment. (The CIA's own Inspector General apparently concluded that some of the techniques do shock the conscience.) I should caution, however, that there is no judicial precedent for applying the "shocks the conscience" standard in the context of interrogations of high-level international terrorism suspects, and therefore there is no way to know for certain whether the McCain Amendment would prohibit even such harsh techniques.

* * * *

I'm not going to discuss here whether these techniques are moral, or "effective," or worth the costs, or whether it was inevitable that they would "migrate" to less carefully monitored settings (e.g., Iraq), or whether they contributed to the confusion throughout the military about legal standards governing detainee treatment. Those important discussions are ongoing elsewhere (such as at Crooked Timber, on Andrew Sullivan's site, and in the comments to this Orin Kerr post), and I don't have any particular expertise to offer on such topics.

No one is discussing this question, however: Are such techniques currently legal?

In a series of posts here, I've tried to explain why the Administration concuded that the CIA, when acting against alien detainees overseas, is not bound by a whole host of legal restrictions, including (but not limited to) the Due Process Clause, the Geneva Conventions, Common Article 3 of the Geneva Conventions, customary laws of armed conflict, Article 16 of the Convention Against Torture, the Uniform Code of Military Justice, and the President's directive that detainees be treated "humanely."

For now, however, I'd like to focus only on the question whether these techniques are federal crimes under two statutes: The federal anti-torture law (18 U.S.C. 2340A), and the federal assault statute (18 U.S.C. 113).

Torture

If our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such techniques (especially Nos. 4-6) are impermissible forms of torture. Indeed, waterboarding and "cold cell" have often been used by repressive regimes, and have historically been thought of as standard forms of torture. And yet the CIA and OLC have concluded that they are not "torture" -- and, as I explained at the end of this post, OLC stuck to this conclusion even after it had, in December 2004, rejected all of the unconvincing statutory analysis of the August 2002 Torture Memo.

How could OLC possibly have concluded that waterboarding and "cold cell" are not necessarily torture? Well, we won't know for certain unless and until we see OLC's specific legal analysis. But surely, a large part of the explanation must be that the Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute.

The criminal statute defines torture as an act "committed by a person acting under the color of law 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"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

I suppose the OLC theory must have been that although these techniques obviously inflict severe discomfort, severe agony, and, in the case of waterboarding, severe terror ("Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."), they do not necessarily inflict severe physical pain or suffering -- at least when applied under certain conditions and with certain "protections" (about which we still lack information). What about severe mental suffering? Perhaps OLC concluded that the mental pain is intermittant and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes, and is not intended to result in any lasting mental suffering.

Without seeing OLC's analysis, it's very hard to determine whether these legal conclusions were reasonable. I do think it's safe to say, however, that the conclusions are counterintuitive. If, for instance, one had asked the President and the 500+ representatives who voted for the torture statute whether waterboarding and "cold cell" and "Long Time Standing" constituted "torture" as they understood it, they all would have said "yes." And to the extent these techniques really aren't "torture" because of technical lacunae in the statute, perhaps that's a sign that Congress should consider amending its definitions.

At the very least, we can now understand that when the President indignantly repeats that "we do not torture under any circumstances," such an assertion of grand principle comes with an important footnote: "The following do not constitute 'torture': Being forced to stand, handcuffed and with one's feet shackled to an eye bolt in the floor, for more than 40 hours; being doused with cold water while standing naked in a 50-degree cell; and being bound to an inclined board, with one's feet raised and head slightly below the feet, and cellophane wrapped over one's face while water is poured over you, inducing a terrifying fear of drowning."

Assault.

Under 18 U.S.C. 113, simple assaults, or assaults by striking or beating, are misdemeanors if they occur "within the special maritime and territorial jurisdiction of the United States." The Administration concedes that this prohibition restricts our interrogations of detainees held "within the special maritime and territorial jurisdiction of the United States." Therefore, it plainly would make unlawful most or all of the six "enhanced" CIA techniques if they occur within the special maritime and territorial jurisdiction of the United States (SMTJ).

In late 2001, the PATRIOT Act amended the SMTJ statute (18 U.S.C. 7) so that the definition of SMTJ now includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership."

According to the ABC News story, the locations at which the enhanced techniques occur "often . . . consist of a secure building on an existing or former military base." Regardless of current ownership, those buildings obviously are being "used for purposes of [the CIA]," and therefore would appear to be within the SMTJ, which would make the CIA's techniques there unlawful.

OLC must have concluded that these facilities are not within the SMTJ; but I have to confess that I have not yet figured out the basis on which the office might have reached such a conclusion, in light of the broad language of the statute.
Posted 10:17 AM by Marty Lederman [link] (10) comments

What the Jamie Leigh Jones Case Tells Us

Scott Horton

I testified today at the Judiciary Committee's hearings on the KBR rape case. The Department of Justice declined to send a representative to the hearing--"an absolute disgrace," in the words of Chairman John Conyers, a comment which several Republican members hastened to join in. Here are some highlights from the testimony:



And here are my prepared remarks:


Is America establishing a culture of impunity among its contractors operating in areas of armed conflict? This is the question which a proliferation of reports out of Iraq invites. When I addressed this committee on June 25, I noted that there was a troubling potential that certain categories of contractors would escape accountability altogether because of some issues that exist with the Military Extraterritorial Jurisdiction Act. I also noted concern that the Department of Justice might not be giving sufficient resources and priority to its enforcement responsibilities over contractors in Iraq and Afghanistan. Unfortunately all those concerns have been borne out.

America’s objectives in Iraq and Afghanistan, as articulated by the President, the Secretary of Defense and the Secretary of State, include helping to create a new democratic society which values the rule of law. But the contractor community that America has fielded to pursue this objective operates in an environment that looks increasingly like Texas West of the Pecos in 1890—without even a Judge Roy Bean to keep things in order. This atmosphere of immunity was created by decisions made by the United States Government, starting with the issuance of Coalition Provisional Authority Order No. 17, which shields non-Iraqi contractors from the nation’s law-enforcement system. That step was arguably appropriate under the circumstances—particularly because the Iraqi criminal justice system was a shambles—but it also conferred on the United States the responsibility to provide an effective substitute. The failure to do this undermines the mission’s credibility. But it also creates an environment which is dangerous to all involved—contractors, the military and other U.S. Government personnel, and the host community in which they operate.

Since June, we have witnessed a parade of further headlines which demonstrate precisely the shortcomings that were identified and addressed in Congressman Price’s legislation, H.R. 2740. And while that legislation overwhelmingly cleared the House—in a 389 to 30 vote—the Senate has not yet acted on a parallel measure. This legislation is urgently needed and should be enacted and signed into law in the near future.

This committee should focus on two questions. First, is there a question relating to appropriations or to legislation which has contributed to the problem which the public now so clearly sees? Second, has the executive branch done what it can and should do to enforce the law?

The horrible rape incident involving Ms. Jennifer Leigh Jones is sickening to hear recounted. It also provides an opportunity to consider exactly how the Government has responded to crimes committed by and among contractors. We have a community of 180,000 contractors in Iraq. Crimes do occur, and this is and must be considered a politically neutral fact. It does not suggest that the reliance upon contractors is mistaken. The decision to rely much more heavily on contractors was not a partisan decision. This community consists entirely neither of angels or devils, but of ordinary human beings, most of whom undoubtedly try to act honorably in fulfilling their duties. You won’t find a community of this size in the United States, or anywhere else in the world, that doesn’t experience serious violent crimes—hundreds of times in the course of a year. Add to that the fact that high pressure circumstances—such as life in a war zone in which shootings and bombings are common—frequently lead to higher than normal rates of violent crime.

Human experience also teaches—since the first formation of human communities—that when the state fails to enforce order, to identify crimes as crimes and to punish them swiftly and certainly, crimes proliferate. The Government has a duty to the citizens of the United States, and also to the employees of the contractor community, to vigorously uphold the law. Indeed, this is one of the most fundamental duties of any Government. If the executive branch felt it needed new tools to do the job, or more money, it had a duty to come to Congress and regulate these questions. I have a lot of difficulty seeing how the executive branch has met this responsibility in the context of the United States presence in Iraq.

I have not independently investigated the facts of the Jones case, though I personally find her account painful and compelling. But if I consider the facts that Ms. Jones has described, taking only those which have not been disputed by Kellogg Brown & Root, then I see no impediment to the exercise of the criminal law jurisdiction of the United States by the Department of Justice. As alleged the crimes occurred among employees of contractors involved in a contingency operation, on installations or facilities maintained by the United States abroad, and involve U.S. citizens as perpetrators and victims. These facts would provide multiple bases for the Department of Justice to exercise its jurisdiction. The crimes which have been alleged—rape, assault and false imprisonment among them—would come under at least two different grants of jurisdiction to U.S. federal courts, namely the Military Extraterritorial Jurisdiction Act, as amended in 2004, and the special maritime and territorial jurisdiction, as expanded by the USA PATRIOT Act. Of course, depending on the identity of the perpetrators, and potentially also the contracts which brought the personnel to Iraq, there might be some legal issues. This would have to be developed by investigation.

The astonishing failure in this case is the failure of an appropriate law enforcement authority to conduct a prompt and timely investigation of the allegations while Ms. Jones was still in theater. It does appear that the matter was reported to the Justice Department early on, and Ms. Jones recalls meeting with a special agent of the FBI from the Baghdad Embassy. But the investigation was conducted by the State Department, and it does not appear to have been an investigation designed to support a decision to take criminal action, including potential prosecution. In a case of this sort, having a timely, professional investigation conducted that secures forensic evidence in a form which is admissible in subsequent criminal proceedings is critical. This does not appear to have occurred. This will make prosecution by the Department of Justice incalculably more difficult. It may lead a prosecutor to conclude that even though a serious crime likely occurred, it will be too difficult to develop the evidence necessary to prosecute it.

In fact the way the medical examination and resulting evidence was handled was truly shocking.

These factual allegations from the Jones case strike me as significant and revealing of structural flaws in the way contractor-related crimes are being handled in Iraq and Afghanistan:

(1) The Justice Department is effectively not present on the scene, does not have personnel deployed charged with conducting investigations, collecting evidence and making preliminary decisions as to whether incidents are suitable for prosecution. This would require a team of FBI agents with appropriate training, including access to forensic labs and personnel.

(2) The case when first alleged seems to have been treated as an issue related to administration of a contract, rather than a criminal justice matter, triggering only a State Department investigation. But the State Department does not have authority to conduct criminal inquiries or to bring charges.

(3) The Department of Defense was called upon to provide medical expertise, which was a reasonable step. But no guidelines appear to have been available as to how this was done. The alleged surrender of the rape kit by military medical personnel to Kellogg Brown & Root was grossly improper, producing a serious lapse in the chain of custody—and in this case, loss of evidence which cannot be reproduced. It reflects an attitude which I hear constantly when interviewing State Department and Defense Department personnel—namely, that the problem is the contractor’s. Of course, the contractor has an interest in performing its contract and maintaining a good relationship with the contracting agency. The contractor does not have any interest per se in law enforcement. It might well decide to terminate employees it believes are involved in a crime, but beyond that the contractor will, very appropriately, believe that the responsibility for law enforcement lies with law enforcement agencies.

On December 5, the Department of State and the Department of Defense, represented through Deputy Secretaries Negroponte and Gordon, entered into a Memorandum of Agreement which sets out guidelines for cooperation in some investigations. When I first received and examined this document, I was convinced I must have been missing several pages. The most extraordinary thing about it is in fact what it does not cover. Remember, this process started in the wake of the Nisoor Square incident on September 16, in which private security contractors working for Blackwater Worldwide opened fire in the Nisoor Square neighborhood of Baghdad, leaving 17 civilians dead and severely wounding 24 more. The confusion, defensiveness, multiplicity of uncoordinated, ad hoc investigations, and inter-agency finger-pointing that characterized the U.S. government response to the shootings highlight the fact that the U.S. Government at this late date still had no plan or procedure for investigating allegations of serious violent crime involving private contractors fielded by the U.S. government in Iraq.

The Defense Department and the State Department got into a bit of a squabble over these investigations, a turf battle if you will. The Memorandum of Agreement was supposed to work out procedures for reconciling their differences. It actually contains a number of important advances. But there is one agency with clear primary responsibility for the investigation of criminal conduct and action thereon, and that agency—the Department of Justice—is nowhere to be found. It’s not a party to the Agreement. In fact, while there is a fairly vague reference to “appropriate” law enforcement agencies, the Justice Department isn’t even mentioned.

With respect to the Nisoor Square incident itself, the first Justice Department investigators appeared two weeks after it was first reported, published above the fold in newspapers around the United States. It made its appearance only after a public spotlight was focused on it, and demands were made by editorial boards and members of Congress for it to account for its inaction.

I wish this had been a unique course of events. But it seemed to me completely typical. We should also look back to the first reports out of Abu Ghraib. Remember that the Report authored by Generals Kern, Jones and Fay identified six contractors, and General Taguba linked two of them to the most serious abuses that occurred at Abu Ghraib. These matters were referred to the Department of Justice, and on to the Eastern District of Virginia in 2004. At the point of referral they had been fully investigated by the Army’s Criminal Investigations Department, with a full dossier supporting prosecution. That same set of investigations fueled more than a dozen courts-martial and even more nonjudicial punishments. On the military side, the process may be subject to some criticisms, but at least there was a process that moved forward and resulted in criminal prosecutions and serious sanctions.

And what about the Abu Ghraib cases involving contractors that were passed to the Department of Justice? Though there is a single newspaper report of a grand jury meeting at which questions were asked about these cases, there is no sign of any meaningful prosecutorial action—not even of efforts to interview victims and key witnesses. The Eastern District of Virginia has a reputation for acting quickly and skillfully. It has in the past years handled some of the highest profile cases in the country. The contrast between those cases and its handling of the cases from Abu Ghraib is nothing short of stunning. And the explanations that have been offered simply do not hold water.

There has not been a single completed prosecution of a crime involving a contractor implicated in violent crime coming out of Iraq, although the reported incidents which would have merited investigation are legion. Again, it is simply impossible to believe that in a community with a peak population of 180,000 people – with many more people than that actually cycling in and out of these jobs, tens of thousands of them Americans – over a period of approaching five years there has been no violent crime. The facts point to something else: an attitude of official indifference within the Department of Justice, or at least a decision to accord these crimes a very low priority and no or very little resources.

Looking back quickly to the two questions I started with:

The developments at Nisoor Square and the tragedy experienced by Ms. Jones show that the legislation that Congressman Price proposed is badly needed. Congressman Price’s bill, as enacted by the House, requires the Justice Department to allocate the personnel and resources needed to address criminal allegations involving contractors. These cases reveal that as an urgent necessity. The Price bill also strengthens the Justice Department’s jurisdictional basis for action which would help avoid unproductive litigation over the scope of the Congressional grant of jurisdiction.

The Jones case, and the Nisoor Square case point to a failure by the Justice Department to provide appropriate resources to address law enforcement within the contractor community in Iraq. There is an urgent need to have investigators, prosecutors and trained support personnel on the ground in Iraq. Back in Washington there should be a staff of experienced trial attorneys with depth in relevant criminal law and the law of armed conflict who can support prosecutions. The Criminal Division needs to be given an explicit mandate to cover this area, and dedicated funding, resources and personnel to do so. The fact that such resources are missing has clearly contributed to the failure to act in a timely and appropriate manner in the Nisoor Square event, in the case that Ms. Jones has described, and in many other incidents as well. It has damaged our nation’s reputation for doing justice.

I look forward to your questions.
Posted 3:42 PM by Scott Horton [link] (3) comments

Prosecuting Blackwater - A Brief Tour of the Law

David Luban

Blackwater security guards’ killings of Iraqi civilians highlights a long-standing problem with private security contractors in Iraq – the "coalition of the billing," as P. W. Singer has called them. The problem isn’t that the private security guards are cowboys. Some are, some aren’t. (No offense intended to real cowboys, by the way.) The real problem is a total incompatibility between their mission and counterinsurgency strategy. Counterinsurgency consists, in brief, of isolating the insurgents from the Iraqi people. It’s a hearts-and-minds strategy, and requires great respectfulness for the Iraqis and absolute restraint taking actions that might harm or anger innocent Iraqis.

In Fiasco: The American Military Adventure in Iraq, Tom Ricks describes an incident in which Marine Col. T. X. Hammes found himself staring down the barrel of a private contractor’s weapon – just four pounds of trigger-pressure away from eternity – after they forced Hammes off the road because they thought he looked suspicious.

Fundamentally, the bodyguards’ mission differed from that of the U.S. military, noted Hammes. "The contractor was hired to protect the principal. He had no stake in pacifying the country. Therefore, they often ran Iraqis off the roads, reconned by fire, and generally treated locals as expendable." Yet Iraqis saw them as acting under American authority. "You have loosed an unaccountable, deadly force into their society, and they have no recourse." (Ricks, p. 371.)

Col. Hammes’s experience on the road that February day was all too common in Baghdad in 2003 and 2004. Scholl concluded that these personal security details had done much political damage to the U.S. effort, especially where they were most active – in the capital: "If there are one hundred PSDs a day in Iraq (there are) and they each anger one hundred people in a day (they do), that is ten thousand Iraqis a day getting extremely agitated at us over the past year." (Ricks, p. 372)

Mission incompatibility would exist even if none of the PSCs were committing violent crimes. The crimes make it far, far worse. Two years ago the British security firm Aegis outraged Iraqis when Aegis employees posted a "trophy video" on the web, showing clips of them shooting up Iraqis in cars, to an Elvis Presley soundtrack. (The video, if you have the stomach for it, is here.) But this past week’s news reports suggest that Blackwater has had the highest rate of shooting incidents. A while back, Phillip Carter noticed that the damage run-amok contractors do to Iraqis is also damage to the U.S. mission.

What, if anything, can the law do? Specifically: Is there any law under which PSCs who commit crimes of violence against Iraqis can be prosecuted? That turns out to be a hard question. Here’s a preliminary cut.

Basically, there are three possibilities: prosecution under Iraqi law, under U.S. civilian law, and under U.S. military law.

Iraqi law. Even though at least one news report last week quoted Iraqi officials who said they would try the Blackwater gunmen, it’s hard to see where they get the authority to do it. Two days before the handover of sovereignty in June 2004, Paul Bremer updated CPA Order 17, which immunizes PMCs from prosecution under Iraqi law (see Section 4.3) – a last-second, prospective get-out-of-jail-free card. Even if Iraq revokes the order, it can’t do so retroactively.

Order 17 does allow contractors’ home states to waive their immunity. So far, though, I’ve seen no reports that Iraq has requested waivers or that the U.S. is considering them.

U.S. civilian law. Unless it says otherwise, there’s a presumption that federal criminal law doesn’t apply abroad. But the federal code creates a "special maritime and territorial jurisdiction" (SMTJ) that includes overseas U.S. bases and facilities. Originally, a main purpose of SMTJ was to transfer law-enforcement authority over military bases inside the U.S. from the states to the federal government, and it wasn’t clear that the SMTJ included overseas bases. In 2000, the Second and Ninth Circuits split over the issue in a pair of creepy cases involving U.S. civilians working in overseas bases who forced their underage stepdaughters to have sex with them (one of them while his wife, the victim’s mother, was on active duty in Bosnia). But the Patriot Act amended the SMTJ statute to make clear that it covers overseas bases, at least "with respect to offenses committed by or against a national of the United States." The federal criminal code includes about thirty criminal statutes that apply in the SMTJ, including assault, maiming, and murder.

So, crimes of violence committed by PMCs on U.S. bases can be prosecuted under civilian law. (The one obvious loophole is that SMTJ jurisdiction includes only crimes committed by or against U.S. nationals – foreign security contractors harming Iraqis aren’t covered.) The prosecution of David Passaro, a civilian contractor who beat an Iraqi detainee to death with a flashlight, established that the SMTJ includes even remote temporary field bases.

But most security-guard crimes won’t take place on U.S. bases. The alternative is the use of the Military Extraterritorial Jurisdiction Act (MEJA). MEJA allows the prosecution for felonies committed by civilians "employed by or accompanying the Armed Forces outside the United States," provided these would be crimes if they were committed within the SMTJ.

So that’s the basic set-up: SMTJ for civilian crimes on U.S. bases abroad, MEJA for civilian crimes off the bases. (It's an interesting question whether MEJA would cover crimes by foreign contractors as well as U.S. citizens - the language of the statutes could be argued either way.)

There was a flurry of interest in MEJA in the wake of Abu Ghraib, where two civilian contractors were implicated – and it turned out that they couldn’t be prosecuted because they had been hired by the Department of the Interior instead of DoD. Or rather, that was the urban legend. In reality, since their deeds were done at a U.S. base, I don’t see any reason why they couldn’t have been prosecuted for SMTJ crimes, other than the fact that the government didn’t want to do it. In any case, Congress plugged the supposed loophole by extending MEJA to include contractors of any federal agency "to the extent such employment relates to supporting the mission of the Department of Defense overseas."

Basically, there are two obstacles to prosecuting Blackwater employees under MEJA, one legal and one practical. The legal obstacle is that they would undoubtedly argue that they are bodyguards for State Department offiicals, and so their role is not "supporting the mission of the Department of Defense overseas." (Even more so for security contractors guarding private companies doing reconstruction in Iraq.)

This argument could go either way. A prosecutor could reply that, if the PMCs weren’t doing guard-duty for State Department officials, the Marines would have to do it. Freeing up the Marines for other jobs sure looks like it "relates to supporting the mission of the Department of Defense overseas." More basically, it would be nice to think that all the federal agencies in Iraq are on the same mission – and the "relates to supporting the mission" statutory language is pretty broad. (It would also be nice if the State Department took seriously the damage its bodyguards are doing to the DoD mission of counter-insurgency, the heart of Gen. Petraeus's strategy. This article suggests that they don't.) Prosecutors should win on this issue, but it's no slam-dunk.

The practical obstacle to prosecution is far more important. Prosecutions under civilian law need civilian prosecutors, and the U.S. Attorneys have shown no interest in doing the job. Singer explains:

Underlying the previous laws like MEJA was the assumption that civilian prosecutors back in the US would be able to make determinations of what is proper and improper behavior in conflicts, go gather evidence, carry out depositions in the middle of warzones, and then be willing and able to prosecute them to juries back home. The reality is that no US Attorney likes to waste limited budgets on such messy, complex cases 9,000 miles outside their district, even if they were fortunate enough to have the evidence at hand. The only time MEJA has been successfully applied was against the wife of a soldier, who stabbed him during a domestic dispute at a US base in Turkey. Not one contractor of the entire military industry in Iraq has been charged with any crime over the last 3 and a half years, let alone prosecuted or punished. Given the raw numbers of contractors, let alone the incidents we know about, it boggles the mind.

(Shortly after he wrote this, a civilian contractor in Iraq was finally prosecuted under MEJA – for child porn.)

Bottom line: don’t hold your breath.

Even more so with the one obvious statute that could be used when contractors gun down civilians: the federal war crimes statute, which applies to all U.S. nationals, not just the military.

The fundamental fact of life is that it has never been used. Calling something a war crime is political dynamite. So, if you’re going to prosecute it at all, you will prosecute it as murder, manslaughter, assault – anything but a war crime. Passaro plainly could have been prosecuted for war crimes, but the charges against him were for assault and homicide – and, because the investigation was botched, he was convicted only of two misdemeanors and one felony assault charge; that, remember, is for beating a detainee to death.

Bottom line on war crimes prosecutions, in practice: fuggedaboudit.

U.S. military law. U.S. armed forces are governed by the Uniform Code of Military Justice, the UCMJ. UCMJ also covers, "in time of war, [civilian] persons serving with or accompanying armed forces in the field" – a practice that goes back to the 1775 Articles of War at the birth of the republic. But a 1970 Vietnam-war decision by a military court (U.S. v. Averette, 41 C.M.R. 363 (1970)) held that "time of war" meant only declared war, and of course the U.S. hasn’t fought a declared war since 1945.

That changed last January when Republican Senator Lindsay Graham inserted an almost-invisible legal change into a massive defense appropriations bill. Graham’s change applies the UCMJ to civilians during "contingency operations" like the Iraq war as well as to declared wars. It means that civilians can now be court-martialed for violating military law. That could be a big plus for accountability, because it doesn’t need stateside civilian prosecutors.

Here are the legal obstacles. First, the law applies only if the contractors’ presence is "not merely incidental to, but directly connected with and dependent upon, the activities of the armed forces and their personnel." (U.S. v. Rubenstein, 22 C.M.R. 313, 317 (1957)) As in MEJA prosecution, the defense could argue that the bodyguards’ mission is incidental to the military’s mission. The contractors' job is simply protecting diplomats and civilian bureaucrats.

In response, the prosecution could make the "substitutability argument" – the private bodyguards are freeing up troops for other missions – or point to the fact that PMCs in trouble can phone in for military support. That makes them "dependent upon the activities of the armed forces."

Second, the law applies only "in the field," and that means "in an area of actual fighting...at or near the ‘battlefront’" where "actual hostilities are underway" (Reid v. Covert, 354 U.S. 1, 35 (1957)). Who knows where the battlefront is in the insurgency? Presumably, if insurgents actually attack a PMC-protected convoy, that makes it an "area of actual fighting." But suppose the Iraqi allegations against Blackwater are completely accurate, and the guards starting shooting at civilians without provocation? Is it an area of actual fighting if the PMCs are the only ones doing the fighting? If not, it looks like the UCMJ doesn’t apply. (Of course, the Blackwater defense was that its guards were under attack. They’re not likely to abandon that defense to argue that the UCMJ doesn’t apply because the guards were the only ones shooting. A tactical dilemma for the defense counsel, perhaps....)

Finally, there is a line of Warren Court cases, starting with Toth v. Quarles and Reid v. Covert, holding that U.S. civilians can’t be court-martialed because courts-martial don’t provide full Fifth and Sixth Amendment rights. Toth had to do with an ex-military defendant, and Reid with military wives who faced the death penalty for killing their husbands. (Other cases: Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960) (spouse and noncapital crime); Grisham v. Hagan, 361 U.S. 278 (1960) (civilian employee and capital crime); McElroy v. Guagliardo, 361 U.S. 281 (1960) (civilian employee and noncapital crime).) These cases all flowed from the Court’s skepticism about military justice. (There was a saying at the time that military justice is to justice as military music is to music.) Almost certainly, any attempt to court-martial PMCs would face a constitutional challenge.

But in the years since these cases, procedures in the military justice system have converged with those in the civilian system, so the 5th and 6th Amendment objections to court-martial aren't nearly as strong as they were in the 1950s. The creation of the Court of Appeals for the Armed Forces, and the availability of Supreme Court review, are additional major changes since the Warren Court cases.

And there are at least two other big differences as well: first, all the Warren Court precedents were peacetime cases; and, even more importantly, none of them involved defendants taking combat roles. There's an obvious strong argument that contractors who tote guns like soldiers should face the same justice system as soldiers. And – in case you hadn’t noticed – it isn’t the Warren Court any longer. It seems pretty likely that Reid and its successor cases would be distinguished or overruled.

So far, though, news reports haven’t suggested that the Blackwater shooters might be court-martialed. Maybe that’s because it’s too soon, and the investigation is still going on. But it could also be that military prosecutors are just as unenthusiastic about court-martialing civilian contractors as civilian prosecutors are about trying them under civilian law.

Bottom line: Stay tuned.

Military tribunals? I have an e-mail from military law expert (and sometimes-balkinizer) Dave Glazier, who floats two other possibilities, which he admittedly calls "out of the box":

(1) Prosecution by general court-martial under the authority of UCMJ Article 18 (10 U.S.C. 818) which reads in part "General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war." I am unaware of any actual use of this provision since the language was first adopted in 1913 as a piecemeal amendment to the Articles of War, but I think it remains a potentially viable exercise of the authority constitutionally committed to Congress to define and punish offenses against the law of nations. The Supreme Court specifically upheld the idea that Congress could rely upon the "common law of war" rather than specifically codifying offenses in Ex parte Quirin, 317 U.S. 1 at 30.

(2) Prosecution by military commission in Iraq applying the law of war. Although the President decided to limit the Guantanamo military commissions to non-citizens and this was subsequently codified in the Military Commissions Act of 2006 (MCA), the military commission was specifically invented in 1847 to try U.S. personnel (soldiers and civilians) outside of other sources of U.S. criminal jurisdiction. While commissions have most frequently sat under color of martial law or occupation law authority (and those particular uses are explicitly preserved under the MCA), recall the Supreme Court in Johnson v. Eisentrager upheld the use of a U.S. military commission in China which was neither occupied nor under martial law to try law of war violations, and the Supreme Court did uphold trial of a U.S. citizen for law of war violations in Quirin, although obviously it could prove significant that they were part of the enemy in that case. Of course restoring the historic (i.e. pre 1942) commonality between court-martial and military commission procedure would almost certainly be necessary for such a commission to have any hope of surviving the inevitable habeas challenge.

Corporate criminal liability. And hey, while we’re at it, let’s not forget that corporations are criminally liable for crimes committed by their employees in the actual or apparent scope of their duties. Prosecutors usually charge corporations (rather than employees) only when they think the organizational culture is the culprit and the individual perp is either merely a symptom of a corrupt corporate culture, or else a scapegoat. A recent news article suggests that Blackwater fits that description.

But Blackwater is politically connected. So corporate indictment doesn’t seem likely to happen.

Civil suits? That’s a topic for a different post. But, in brief, it doesn’t look too likely because of the government contractor defense.
Posted 1:07 PM by David Luban [link] (14) comments

Judge Gonzales' Senate Responses

Marty Lederman

Judge Gonzales has submitted over 100 pages of responses to written questions propounded by members of the Senate Judiciary Committee (and by Senator Levin). Here are links to Judge Gonzales' responses to questions of:

Senator Biden;

Senator Coburn;

Senator Durbin (Part I) (Part II);

Senator Feingold;

Senator Feinstein;

Senator Graham;

Senator Grassley;

Senator Hatch;

Senator Kennedy (Part I) (Part II) (Part III);

Senator Kohl;

Senator Leahy;

Senator Levin;

Senator Schumer;

Senator Sessions; and

Senator Specter.

I've quickly reviewed most of the responses. These are among the highlights with respect to the issues about which I've been blogging recently (e.g., torture, interrogation, the CIA, the Geneva Conventions, the Office of Legal Counsel -- scroll down to posts of January 7, 11, 12 and 14). They appear primarily in the responses to questions from Senators Durbin, Feingold, Feinstein, Kennedy, Leahy and Levin:

1. AUTHORITY OF THE CIA TO ENGAGE IN CRUEL, INHUMAN AND DEGRADING CONDUCT

a. The responses confirm what has been manifest for a while now: The Administration has concluded that the CIA, when it interrogates suspected Al Qaeda detainees overseas, may lawfully engage in "cruel, inhuman and degrading" treatment--i.e., treatment that would "shock the conscience," and thus be unconstitutional, within the United States--as long as that treatment does not constitute "torture" under the very narrow meaning of that term in the federal criminal law. Judge Gonzales confirms that the CIA, unlike the Armed Forces, is not bound by the UCMJ (including the prohibition on cruelty and maltreatment of prisoners), and is not subject to the President's February 2002 directive that detainees be treated "humanely." Moreover, according to Judge Gonzales, "the Department of Justice has concluded" (in documents we have not seen) that the prohibition on cruel, inhuman and degrading treatment in Article 16 of the Convention Against Torture does not apply to aliens overseas because Article 16 merely incorporates what the Due Process Clause forbids--and the Due Process Clause does not, in the Administration's view, apply to aliens outside the U.S. (This last assumption, about the absence of any extraterritorial application of the Due Process Clause, is the subject of current dispute in litigation involving Guantanamo detainees.) The responses do not expressly reveal whether Article 16 protects detainees at U.S. facilities overseas, such as at GTMO and in Iraq; but if the Administration's previous views about the geographic reach of the Constitution are any indication, its answer will be that Article 16 is inapplicable in those locations, as well.

b. Although the Administration is not "legally required" to refrain from conduct that "shocks the conscience" overseas, Judge Gonzales asserts that the Administration nevertheless "want[s] to be in compliance with the relevant substantive constitutional standard incorporated into Article 16," and he further represents that he "had been advised" (interesting use of tense) that "approved interrogation techniques were analyzed under that standard and satisfied it." "Since that time," however, "we have determined to undertake a comprehensive legal review of all interrogation practices. . . . The analysis of practices under the standards of Article 16 is still under way, but no one has told me that we are not meeting the substantive requirements of Article 16." If and when the Administration determines whether any of its approved interrogation techniques would violate the Article 16 substantive standards, it is not clear what would happen to such techniques (because they are not unlawful); and it is also not clear that the public or the Congress will be made aware of the results of the comprehensive legal review (see the paragraphs concerning OLC, below).

c. Despite "want[ing]" to be in compliance with the substantive prohibition on cruel, inhuman and degrading treatment, the Administration remains resolutely opposed to any statutory initiative to make that prohibition a legal requirement, because foreign prisoners should not be provided "legal protections . . . to which they are not now entitled." In other words, they "want" U.S. persoto refrain from conduct that shocks the conscience--but they will resist any effort to legally prohibit CIA personnel from engaging in such conduct.

d. In response to questions concerning the legality of a series of specificed techniques--including waterboarding, use of dogs to induce stress, forced nudity, hooding, sensory deprivation, food and sleep deprivation, exposure to extreme temperatures, a face or stomach slap, the forcible injection of mood-altering drugs, mock executions, and threatening to send detainees to countries where they would be tortured--Judge Gonzales allows that "[s]ome of these activities, at least under certain factual assumptions, might very well be prohibited," even if "[s]ome might likewise be permissible in specific circumstances, if appropriately limited, depending on the nature of the precise conduct under consideration." [UPDATE: Indeed, Judge Gonzales goes so far as to state that it would not be "appropriate" for him to "attempt to analyze" the legality of reported practices such as forced enemas, infliction of cigarette burns, and binding detainees hand and foot and leaving them in urine and feces for 18-24 hours! Judge Gonzales concedes that 18 U.S.C. 113 prohibits intelligence agents from committing assault within the special maritime and territorial jurisdiction of the U.S. Wouldn't it be a simple thing to acknowledge that cigarette burns and forced enemas are unlawful assaults? Or is Judge Gonzales perhaps preserving the argument that such conduct might not be unlawful if performed by the CIA outside the U.S. special maritime and territorial jurisdiction, e.g., in a foreign-operated detention facility?]

Moreover, Judge Gonzales repeatedly refuses to reveal whether and under what circumstances any such techniques have in fact been approved as legal for use by any U.S. personnel, because he reasons that to categorically and publicly rule out a particular technique "would provide al Qaeda with a road map concerning the interrogation that captured terrorists can expect to face and would enable al Qaeda to improve its counterinterrogation training to match it."

There are at least two problems with this response:

First, the Administration has already voluntarily disclosed extraordinary detail concerning the specific methods that Secretary Rumsfeld ostensibly has approved for DoD interrogations of non-Geneva-protected detainees at GTMO. And as to the vast majority of persons the U.S. has detained, in this war and many others over the past several decades, the legal and acceptable interrogation techniques were circumscribed by the Geneva Conventions, and are spelled out in Army Field Manual 34-52, which is available online. If the U.S. has been forthcoming about what its law prohibits in the past (and currently, as to the DoD), why must there be secrecy as to the most disturbing and questionable of our approved techniques?

Second, and in any event, why can't the Administration provide classifed briefings to the Senators in which it answers these questions? At the very least, the Congress should know just what it is permitting the CIA to do when it chooses (as it has done twice in recent months) to scuttle a statutory amendment that would categorically prohibit the U.S. from engaging in cruel, inhuman and degrading treatment of detainees.

2. APPLICATION OF GENEVA CONVENTIONS IN IRAQ

Judge Gonzales reaffirms the Administration's long-stated position that the Geneva Conventions apply to the conflict between the United States and Iraq, and that Iraqi military personnel who satisfy the criteria of Article 4 are entitled to POW status under Geneva. He clarifies, however, that other actors in Iraq, such as insurgents, who take up arms without complying with the criteria of Article 4, "may not be legally entitled to protections under [Geneva]." If this is so, it may explain why the Administration apparently concluded that it could authorize extremely harsh and coercive interrogation techniques against such persons even in Iraq. (What is much less clear is the basis for the Administration's apparent decision to permit military personnel, rather than the CIA, to engage in what Seymour Hersh described as "physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq." Such conduct by personnel in the Armed Forces would appear to violate both the UCMJ and the President's directive that the military must treat all detainees humanely.)

Moreover, Gonzales suggests that the Fourth Geneva Convention, with its protection of civilians, no longer applies to civilians detained by the U.S. now that the U.S. is no longer an occupying power. [QUESTION FOR THOSE WHO ARE FAMILIAR WITH THE GENEVA CONVENTIONS: If Gevena IV does not apply to protect civilian detainees of a non-occupying power, which, if any, of Geneva's protections do protect such civilian detainees?]

3. ROLE OF THE OFFICE OF LEGAL COUNSEL

a. Judge Gonzales concurs with the principle that some of us former OLC'ers promulgated last month that OLC's duty and fucntion is to provide the President and the Executive Branch with an accurate and honest analysis of the law, even where that candid and impartial analysis would constrain the administration's pursuit of policy goals, and he pledges to work with the Assistant AG for OLC "to ensure that OLC continues to employ the practices necessary to meet the highest standards of legal analysis."

b. However, contrary to another of the principles that we've recommended, Judge Gonzales at several places declines to provide the Senate with copies of OLC Opinions, or to reveal the conclusions contained in such Opinions, even where such Opinions presumably provided the legal basis for Executive Branch action. In defense of this lack of transparency, Judge Gonzales writes that "[t]he longstanding practice is that non-public OLC opinions are not disclosed outside the Executive branch."

With all respect, this explanation is simply question-begging. Preventing disclsoure outside the Executive Branch is what it means for an OLC Opinion to be "non-public." The question Judge Gonzales fails to answer is why he is choosing to keep these Opinions "non-public." He invokes the "deliberative processes of the Executive Branch and the attorney-client relationship between Administration officials and OLC." To be sure, that relationship could suffer if OLC were to publicly disclose all of its Opinions--including those reflecting classified information or those in which OLC concludes that proposed Executive action would be unlawful. But where the OLC opinion is not classified, and it provides the legal rationale for Executive action that is thereafter undertaken, there is rarely any compelling reason to prevent the public from knowing the legal basis for its government's actions.

Posted 7:35 PM by Marty Lederman [link] (22) comments

Understanding the OLC Torture Memos (Part III)

Marty Lederman

For those who are interested in the legal details, here’s a brief look at the numerous other possible sources of law that, some might argue, may restrain the conduct of CIA interrogations of suspected Al Qaeda operatives outside U.S. jurisdiction, with an explanation of why the Administration has (or has likely) concluded that each source of law is inapposite in the context of the CIA interrogations in question. (Readers uninterested in the legal details can skip ahead to the final couple of paragraphs, below.)

1. The Eighth Amendment. Prohibits cruel and unusual punishment.

Not applicable here because: (i) The Administration contends that the Constitution does not protect aliens overseas; and (ii) these interrogations do not involve punishment, as such.

2. The Due Process Clause of the Fifth Amendment. Prohibits conduct that “shocks the conscience.” At least three, and probably as many as five or six, Supreme Court Justices likely share the view Justice Kennedy expressed in 2003 in Chavez v. Martinez that “a constitutional right is traduced the moment torture or its close equivalents are brought to bear. . . . [I]t seems . . . a simple enough matter to say that use of torture or its equivalent in an attempt to induce a statement violates an individual's fundamental right to liberty of the person."

Not applicable here because: In the Administration’s view, the Due Process Clause of the Fifth Amendment does not of its own accord provide any constitutional rights to aliens overseas—including the right not to be treated in a manner that shocks the conscience. (This is a very hotly contest legal question right now because of footnote 15 of the Supreme Court’s recent decision in Rasul; and it is currently being litigated in the Guantanamo habeas cases being considered in the U.S. District Court for the District of Columbia in the wake of Rasul.)

3. The Uniform Code of Military Justice. Prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134). Senator Graham focused on this yesterday—he questioned why OLC was bothering to construe the torture statute so narrowly when the UCMJ obviously imposes much more stringent limitations.

Not applicable here because: The UCMJ does not apply to the CIA.

4. President’s February 7, 2002 “Humane Treatment” Directive. Requires that the Armed Forces must “treat detainees humanely.”

Not applicable here because: The directive is carefully worded so as to apply only to the Armed Forces, and not to the CIA.

5. Third (POW) Geneva Convention, Article 17. Prohibits all coercive, unpleasant and disadvantageous treatment of POWs: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”

Not applicable here because: The Administration has concluded that Al Qaeda is not a contracting party and thus that Al Qaeda detainees are not POWs protected by article 17.

6. Fourth (Civilian) Geneva Convention, Article 27. Requires that protected persons “shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”

Not applicable here because: The Administration has concluded that the Civilian Convention applies only to “civilian non-combatants” and that alleged Al Qaeda detainees do not qualify because they are “unlawful combatants.”

7. Common Article 3 of the Geneva Conventions. Provides that “[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, [and] the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; . . . (c) outrages upon personal dignity, in particular humiliating and degrading treatment.”

Not applicable here because: The President has determined that common Article 3 does not apply to the war against Al Qaeda because the conflict is “international in scope.”

8. Protocol I to the Geneva Conventions, Article 75. Provides that “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances,” that “[e]ach Party shall respect the person, honour, convictions and religious practices of all such persons,” and that “[t]he following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation; (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; . . . and (e) threats to commit any of the foregoing acts.”

Not applicable here because: The U.S. has refused to ratify Protocol I.

9. Convention Against Torture, Articles 1, 2 and 4. Requiring signatory parties, such as the U.S., to ensure that all acts of torture (and attempts to commit torture and complicity or participation in torture) are offenses under its criminal law, and to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction, without permitting any “exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency,” or superior orders, to be invoked as a justification of torture.

Not independently applicable here because: The Senate ratified the CAT subject to certain restrictive understandings and reservations of the definition of "torture" in these articles, which were incorporated in the narrower definition of “torture” in the federal criminal statute. These articles therefore establish a binding norm only with respect to “torture” as it is narrowly defined in 18 U.S.C. §§ 2340-2340A (see No. 17, below).

10. Convention Against Torture, Article 16. This is the provision on which Prof. Dorf focuses. It requires each state party, such as the U.S., to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." The U.S. ratified article 16 subject to the understanding that this article refers only to conduct that would violate the Fifth, Eighth and Fourteenth Amendments—for present purposes, conduct that would “shock the conscience” under Due Process Clause standards.

Not applicable here because: The CIA is not acting “in any territory under [U.S] jurisdiction,” but is instead interrogating detainees in foreign jurisdictions. In other words, when the CIA takes detainees into foreign jurisdictions and engages in coercive interrogations there—even interrogations that would be unconstitutional here in the United States—it need not worry about whether article 16 applies. [The Bush Administration might also argue that the conduct in question does not shock the conscience in light of importance of the asserted government objective—viz., obtaining valuable intelligence in the war on terror. This would be a highly contested, and risky, proposition. In his hearing, Judge Gonzales also hinted at another rationale: that because the Constitution itself does not (in the Administration’s view) provide aliens outside the U.S. with any substantive constitutional rights, then article 16 (which is construed in accord with the Constitution) likewise does not provide any substantive protections outside the U.S. (a theory that, if correct, would appear to render article 16 inoperative at Guantanamo, too).]

11. International Covenant on Political and Civil Rights, Article 7. Provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The U.S. also ratified this subject to a limiting reservation that, for present purposes, limits the Article to cover only conduct that “shocks the conscience.”

Not applicable here because: According to the DoD Working Group Report (at page 6), the U.S. “has maintained consistently that the Covenant does not apply outside the United States or its special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict”—even though such limitations do not appear in the provision itself (in contrast to article 16 of the CAT), and even though there is some international law precedent to the contrary. Presumably the U.S. position that the Covenant does not apply extraterritorially is based upon Covenant Article 2.1, which states that "[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.”

12. Customary International Law. Some contend that CIL prohibits all cruel, inhumane and degrading treatment.

Not applicable here because: The U.S. has long asserted that CIL does not bind the Executive Branch, even where the Executive Branch has historically opted to act in accord with CIL standards.

13. Common Law of the “Law of Nations” Enforced Via the Alien Tort Statute, 28 U.S.C. § 1350. The Supreme Court recently held in Sosa v. Alvarez-Machain that Congress intended to permit the Alien Tort Statute to be used to enforce a “modest number” of common-law claims based upon “norms of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms” of violation of safe conducts, infringement of the rights of ambassadors, and piracy.”

Not applicable here because: Before the decision in Sosa, the Administration argued that the ATS cannot be used to enforce any common-law CIL claims. After Sosa, presumably the Administration would argue that cruel, inhuman and degrading treatment against aliens overseas that falls short of what U.S. criminal law defines as “torture” is not “defined with a specificity comparable” to the three 18th-century torts identified in Sosa, and thus does not constitute a legal norm that Congress has recognized as binding and enforceable through the ATS. Obviously, this is a highly contestable proposition—but one that almost certainly will not be seriously challenged until a detainee actually litigates such an ATS claim.

14. Durbin Amendment to the 2005 DoD Authorization Act. Would have categorically provided that “[n]o person in the custody or under the physical control of the United States shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States.”

Not applicable here because: Although the Senate voted unanimously in favor of the bill that included this prohibition, it was stripped out in Conference and replaced with boilerplate “sense of the Congress" and "U.S. Policy" provisions, which appear as subsections 1091(a)(8) and (b)(1) of the final bill as enacted.

15. 2005 DoD Authorization Act, Section 1091(b)(1). Provides that “[i]t is the policy of the United States to—ensure that no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States." (Similarly, at his hearing, Judge Gonzales stated that “it is not the policy of the administration to tolerate torture or inhumane conduct toward any person that the United States is detaining.”)

Not binding here because: The Executive Branch has traditionally construed such “policy of the U.S.” provisions (and "sense of the Congress" provisions) as hortatory and as thus not establishing supreme law of the land binding the Executive.

16. Durbin Amendment to the Intelligence Reform Act of 2004. The 9/11 Commission recommended that the U.S. develop policies to ensure that all captured terrorists be treated humanely. The Intelligence Reform bill that the Senate approved would have done so: It included a Durbin Amendment that would have expressly applied the prohibition on cruel, inhuman and degrading treatment to the intelligence community.

Not applicable here because: The House Conferees (presumably with the support of DoD), insisted on deleting that prohibition in the final bill that the President signed last month.

17. The Federal Torture Statute: 18 U.S.C. §§ 2340-2340A. Finally, we come to the singular subject of the OLC Opinions. This criminal statute provides that it shall be unlawful for anyone outside the United States to commit, attempt to commit, or conspire to commit, torture. Torture is defined as an act “committed by a person acting under the color of law 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”; and the statute in turn defines ''severe mental pain or suffering'' to mean “the prolonged mental harm caused by or resulting from - (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.”

This criminal statute is applicable to CIA interrogations of aliens outside U.S. jurisdiction. Accordingly, the function of the OLC Opinions is to address this statute—a prohibition that is, in the Administration's view, the only legal constraint on CIA interrogations committed against aliens outside U.S. jurisdiction.

* * * *

I don’t mean to suggest that the Administration is necessarily wrong about the inapplicability of any of the other legal norms against inhumane and coercive treatment that I’ve identified above. Indeed, the Administration is almost certainly correct that the majority of those legal constraints do not apply to CIA interrogation of suspected Al Qaeda operatives outside U.S. jurisdiction. And although there are very serious debates about some of the Administration legal positions described above, I think it would be hard to say conclusively that the Administration is obviously wrong on any of them.

But even if the Administration is wrong as to one or more of them, the point I’m trying to establish here is simply that—contrary to the impression it is trying to convey to Congress and the public—the Administration has likely concluded that the CIA is not bound by any of these restrictions on cruel, inhuman and degrading treatment. Thus, on this view, as to CIA interrogation of Al Qaeda suspects outside U.S. jurisdiction, the torture statute is the whole ballgame, and inhumane conduct that falls short of "torture"—i.e., conduct that is, in the words of the Levin Opinion (p.6 and n.14), a “lesser form,” rather than an "extreme form,” of cruel, inhuman and degrading treatment—is legally permissible.

With this in mind, it becomes clear that perhaps the most important part of the new Levin Opinion is footnote 8, which reads: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." In other words, despite its admirable and considerable repudiation of the 2002 OLC Opinion, the new OLC Opinion does not in any significant way affect what the CIA has already been specifically authorized to do. And the Administration has concealed from the public (and perhaps from the Congress, too?) the extreme forms of interrogation—just short of the strict statutory standard of “torture”—that the CIA presumably is authorized to use upon detainees overseas.

Final post to follow.

Posted 9:05 AM by Marty Lederman [link] (9) comments

Yes, It's a No-Brainer: Waterboarding Is Torture

Marty Lederman

Following up on Jack's post, I would emphasize again that despite its constant pleas that it cannot publicly discuss the legality of particular interrogation techniques -- an argument that ultimately depends on the notion that the rule of law is incompatible with fighting wars, because it is inapprorpiate to inform the enemy of what one's legal limits might be -- the Administration is more than happy to enumerate, in significant detail, which techniques are not legally available. As I wrote last month:

In his speech today, the President once again insisted that we "cannot describe the specific methods used -- I think you understand why -- if I did, it would help the terrorists learn how to resist questioning." In other words, if the detainees know what our legal limits are, they will know precisely which techniques they must resist in order to avoid revealing valuable information.

But this argument is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And, as noted above, the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.

In other words, if, in the Administration's view, waterboarding were clearly unlawful, it would say so publicly. The fact that it is unwilling to do so means that it is leaving open the possibility that the CIA may legally employ waterboarding.

How can that possibly be? I understand how the Vice President might think it is a "no brainer" that waterboarding can be used, because he and his staff do not think that the law binds the Executive branch at all. [It really says something about the state of our Nation, doesn't it, that the Administration's ludicrous defense of the Vice President's remarks is that he was referring not to waterboarding but instead to dunking detainees in water? As if that torture technique -- you know, the one used to test suspected witches -- is more acceptable conduct for the greatest democracy on Earth in the 21st Century? As I've said before, the term "shameless" doesn't even begin to describe . . . .]

But let's put aside the Vice President. How could the Office of Legal Counsel possibly conclude that waterboarding is legal? The short answer is that if OLC were performing its role properly -- i.e., assisting the President's faithful execution of the law -- it couldn't ever have signed off on such a technique. Even if waterboarding were not "torture," as defined in the law, it would still violate at least three other legal prohibitions, even when conducted by the CIA (which is subject to fewer laws than the military). For example, waterboarding violates:

(i) The federal assault statute, 18 U.S.C. 113, which provides that simple assaults, or assaults by striking or beating, are misdemeanors if they occur "within the special maritime and territorial jurisdiction of the United States" (which includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership").

(ii) Common Article 3's prohibition on all "cruel treatment and torture."

and

(iii) The McCain Amendment's prohibition on cruel, inhuman and degrading treatment, which prohibits all conduct that would "shock the conscience" assuming the Due Process Clause applied. According to Justice Kennedy (almost certainly the dispositive vote as of now), this includes at the very least "torture or its close equivalents."

But one need not resort to these other legal constraints in this case, because waterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise -- but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself "has long considered waterboarding to be torture and a war crime.":

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.' After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture. It is hard to imagine how OLC could possibly have concluded otherwise.

But I think I've figured out what OLC's "reasoning" was. The key is found in the replacement torture memo, the one issued in December 2004 to supersede the notorious August 2002 torture memo.

In one of my first posts here, I praised that 2004 memo, which is in numerous respects an enormous improvement over, and rebuke of, the horrifying memo that it superseded. But I continued to be bothered and befuddled by footnote 8 of the memo, which stated that notwithstanding the "various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." If, as reported, those OLC conclusions in 2002 included that waterboarding could be legal, how could the new memo's more reasonable legal analysis of the torture statute not affect what the CIA had been authorized to do?

Part of the answer is in the narrow way that Congress has defined torture. The Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute. The criminal statute thus defines torture as an act "committed by a person acting under the color of law 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"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

Ans so, perhaps OLC concluded that when it comes to waterboarding, the mental pain and suffering is intermittent and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes or less, and is not intended to result in any lasting mental suffering. (Let's put to the side here the rather problematic point that severe long-term mental suffering is foreseeable in many cases.)

OK, but even if we assume that analysis is plausible (which is a stretch), and even assuming further that waterboarding does not result in physical pain, what about the prohibition on intended severe physical suffering? After all, the very purpose of waterboarding is to inflict a form of intense physical suffering that results in severe terror for one's life -- a terror that not even the most hardened criminals are said to be able to resist. According to one account reportedly promulgated by the CIA itself, "[u]navoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

The whole point of waterboarding is to induce severe physical suffering. Therefore it is torture, even under the limited definition in U.S. law.

It ought to be as simple as that, right? Indeed, the idea that Congress would not have considered the acute suffering caused by waterboarding to be "torture" (particularly in light of the historical consensus that it is a paradigm case of torture) is so utterly implausible that it is hard to imagine the Office of Legal Counsel even considering, let alone adopting, any interpretation of the statute that would exclude such a technique from its ambit. Under a reasonable mode of statutory construction, one could start with the understanding that waterboarding is torture, and work outward from that truism to see what it reveals about the meaning of the statute for other techniques.

Ah, but take a look at the runover paragraph at the top of page 12 of the 2004 OLC memo -- a passage that I unfortunately overlooked when I first analyzed the memo. In that paragraph, OLC concludes that in order to constitute "torture," "severe physical suffering "would have to be a condition of some extended duration or persistence as well as intensity." The category is, OLC reasoned, "reserved for distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory."

This legal "analysis" is simply made of whole cloth. Well, not even. There's no cloth there at all. It is completely unsupported by, and contrary to, the plain words and structure of the statute -- which require that severe mental suffering be "prolonged" in order to constitute "torture," but that conspicuously fail to include a similar duration requirement for severe physical suffering. Nor is OLC's "duration" requirement supported by any other evidence or rule of statutory construction. OLC doesn't cite anything in support of its conclusion -- nothing worthy of mention in serious conversation, anyway. (In a footnote, OLC canvasses some dictionary definitions of the word "suffering." Suffice it to say that the footnote is so desperate, half-hearted and unconvincing -- indeed, it undermines OLC's interpretation of the statutory phrase -- that the less said about it the better, for the sake of OLC's long-term reputation. That those dictionary definitions were the best -- indeed, the only -- authorities OLC could come up with speaks volumes about its attempt to intepret the phrase "severe physical suffering" so as not to cover profound but "transitory" physical suffering, such as that resulting from waterboarding.)

Once I focused on it, it became obvious that OLC wrote that particular paragraph of the 2004 OLC Opinion not in order to provide any legitimate legal advice about the meaning of the phrase "severe physical suffering," but instead precisely with waterboarding in mind (since the whole point of waterboarding is that the suffering it induces is so severe and acute that it doesn't take long to "work"), and for the specific purpose of being able to conclude that OLC's former absurd advice -- that waterboarding is not "torture" -- was not affected by the new 2004 analysis of the statute. It is a desperate, horrifying piece of legal analysis -- as craven and unconvincing as (almost) anything in the 2002 memo.

It pains me to say that, not only because I think the 2004 memo is otherwise such a needed and welcome improvement over what came before, but also because I am a proud alum of the Office with great respect for the role OLC had traditionally played in our constitutional system. But OLC's analysis of the phrase "severe physical suffering" -- a disingenous bit of ipse dixit evidently ginned up merely in order that the Office would not have to condemn waterboarding as illegal -- is an unfortunate example of the Office at its nadir, acting not in its proper role as honest and faithful interpreter of law, but instead as apologist for the torturer, who, as the Court has noted, "has become--like the pirate and slave trader before him--hostis humani generis, an enemy of all mankind."
Posted 11:07 AM by Marty Lederman [link] (82) comments