Tuesday, January 18, 2005

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:


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.


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?]


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.


Great post, I enjoyed reading it.

Adding you to favorites, Ill have to come back and read it again later.

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