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]