Friday, December 16, 2005

The McCain Amendment -- The Good

Marty Lederman

Faced with apparent veto-proof supermajorities in both the Senate and the House, the White House had little choice but to capitulate today to accepting the McCain Amendment in the form it passed the Senate, without the CIA exemption upon which the Vice President had been insisting.

There's a great deal worth saying about the McCain Amendment, and about the legislative and administrative deals that are apparently still brewing in connection with it, but unfortunately I just had surgery to repair a shattered ankle, and therefore I'm a bit constrained in what I can blog just now. Nevertheless, I don't want to disappoint my friend Orin Kerr, so I suppose I'll take a stab at some haze-o'-pain-and-narcotics blogging. ;-) Apologies in advance if the results are less than pellucid.

Andrew Sullivan is understandably, and justifiably, thrilled at the recent turn of events. After all, the McCain Amendment looked like a long shot, and the President was threatening his first veto, even if it meant not funding the Pentagon and the war in Iraq (now that's dedication to cruelty!). Andrew and others (such as Michael Kinsley) deserve major kudos for keeping the heat on, and for patiently taking on, and taking apart, the suddenly prominent and emboldened pro-torture, anti-McCain camp (incluidng Charles Krauthammer, Kenneth Anderson, the Wall Street Journal editorial page, and the cavalier crew over at the National Review Corner (see numerous posts over the past couple of weeks from Levin, Lowry, McCarthy)) -- many (but not all) of whom are actually proposing to go much further than Bush, Cheney and Addington, and to legalize torture, as such, as to certain detainees, despite the categorical treaty and statutory prohibitions already in place against torture. (Just to be clear: As far as I know, there is no one in the Executive Branch or the Congress -- no one -- who would even hint at, let alone propose, a legislative enactment to sanction any exceptions to the torture ban. Those, like Krauthammer and others, who would codify exceptions to torture, cannot find support from any public official -- not Cheney, not Addington, not Hunter, not Cambone, etc.) [CLARIFICATION: I do not mean to suggest that each of the persons listed here would, like Krauthammer, propose an express exemption for "torture," as such.]

And, of course, Senator McCain deserves a great deal of credit for being so resolute in apparently standing his ground against repeated entreaties from the Vice President and National Security Adviser Hadley to water down his proposal.

Passage of the McCain Amendment will definitely be a welcome step forward--one that is long overdue. I suppose I ought to be thrilled about it, seeing as how the principal provision of the Amendment is one that I urged here in January and again in May. The McCain Amendment would accomplish one very important, baseline reform: It would eliminate the geographical distinctions that the Department of Justice has disingenuously read into Article 16 of the Convention Against Torture.

To reiterate: Article 16 requires the United States 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 Senate's 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.

The Department of Justice has construed the Senate's "understanding" not only to incorporate the substantive requirements of the Fifth Amendment (prohibiting conduct that "shocks the conscience"), but also to incorporate any geographical restrictions that apply to the Fifth Amendment. The Administration has taken the view that (i) the Fifth Amendment does not protect aliens who are in the custody of the U.S. overseas, and therefore, (ii) neither does Article 16.

As I've explained in numerous posts on this site, what this means, as a practical matter, is that the CIA has been authorized, in its interrogations of non-POWs overseas, to take any steps short of a very narrow DOJ definition of "torture," including waterboarding, "cold cell" (hypothermia), and "long time standing," even if such techniques would be unconstitutional if applied here in the United States.

The McCain Amendment would eliminate this geographical distinction. Its second provision provides, categorically, 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," and that "[n]othing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section."

In other words, the McCain Amendment will revive, and codify, the original (and proper) understanding of Article 16 of the CAT. (Indeed, it may go even further, because the McCain Amendment, unlike Article 16 itself, is not limited to territory "under [U.S.] jurisdiction," a textual qualification in the CAT that DOJ apparently also relies on to limit the geographical scope of Article 16.) And presumably that will, in turn, restrict the use of at least some of the more extreme measures that the CIA has been authorized to use -- methods such as waterboarding and cold cell, which are likely unlawful torture and/or assault, in any event, notwithstanding DOJ's strained legal interpretations.

Nevertheless, the McCain Amendment is not a panacea -- and it hardly signals the end of the torture debate. This is both because the Amendment is more modest in effect than some have assumed -- its influence will depend in large part on the Executive branch's interpretive and implementing choices -- and because its enactment apparently will come at great cost. More on these potential problems in the posts below.


Marty, I would appreciate it if, in attributing positions to me in your widely read blog, you would trouble to get them right. I am sure there is quite enough in them on their own to irritate your readers without having to mispresent them. So, to try to be clear. I have not endorsed torture. I have suggested that not all forms of interrogation that you consider torture necessarily are - I realize that you may not be able to tell the difference between disagreeing with you and endorsing torture, but, yes, there is one. I have said flatly that there is an absolute floor below which no treatment can go, because it constitutes torture - thereby rejecting Krauthammer's view - but also noting that the Torture Convention does not come with a users manual that establishes what actual interrogation practices actual constitute torture, and for that reason there needs to be public debate. I think the McCain admendment has problems as the resolution of that debate, as you do as well, but at least it is one. I find troublesome the importation of constitutional standards that are fundamentally about penology within a domestic democratic society; at bottom, though, I can live with the McCain amendment outcome. I realize that you view anyone who disagrees with you that waterboarding is self-evidently torture - even a Zarqawi in full possession of information that might save the lives over months of many innocent Iraqis - is merely endorsing torture. And possibly many, or even all of your readers here would agree with that. But in that case, you might bother to tell them that in your view Anderson endorses torture because he thinks under some circumstances waterboarding might be justified; and because I, Marty Lederman, don't, Anderson has thereby endorsed torture - rather than the considerably different statement that Anderson endorses torture in the same way, for example, that Krauthammer does. That is not the case. I don't appreciate the elision and the misprepresentation.

Professor Anderson: I was writing very quickly, and should have avoided the shorthand term "pro-torture," precisely because -- as I took pains to note ("many, but not all of whom . . . ") -- not all of those I identified have pronounced themselves in favor of "torture," as such, on any definition (I believe Rich Lowry, for instance, has come out squarely against it). I apologize if I left any misimpression. No doubt my phrasing shed more heat than light.

My principal intent in that passage was simply to provide links, so that readers could see for themselves where the debate was (distressingly, in my view) heading. It was mainly Krauthammer of whom I was thinking as an example of someone who is *expressly* proposing permitting "torture," as such (however one wishes to define it) -- a proposal that is not on the table for anyone in official Washington.

My aim is (and was) to be absolutely clear and fair about what is now publicly being debated. I don't wish to mischaracterize your views -- not in the slightest. So I hope you won't mind if, in the spirit of fairness and accuracy, I simply set out here some of the positions you conveyed in the post to which I linked. If I am wrong in any respect, I'd genuinely welcome correction:

Just to be clear at the outset: You specfically wrote that you were *not* "here arguing for" a "protocol established in advance for serious, unapologetic, and above all systematic torture"; you purported to have "genuinely mixed feelings" about it, and noted that "it seems odd [to you] not to discuss the idea."

You also wrote that "I am willing to accept some absolute, rights based floor in treatment - even, possibly, in the ticking bomb scenario. I can't tell you what exactly that it is - but I can tell you it is not any of the stuff, behavior within the official policies, that seems so self-evidently below that threshold to Professor Luban."

That is to say, you would set the "floor" for treatment below waterboarding, cold cell, and "long time standing" (all of which are apparently among the official policies of the CIA).

And you wrote that, with respect to possible detainees such as a Zarqawi, you "hope" that someone has "prepared a protocol and regime of deliberate mistreatment and abuse that, while falling short of putting him through Saddam's meatgrinder, would go far, far beyond the methods that Professor Luban thinks are beyond the pale. There are many things beyond officially sanctioned American interrogation techniques that fall short of actual torture and which ought to be used on a Zarqawi, because other people's lives also matter, also have intrinsic moral worth, including Iraqi and Jordanian lives, and it is not a question that within the first weeks or months of holding Zarqawi, obtaining such information is proximately about saving lives. Waterboard Zarqawi? In a heartbeat."

In other words, if I understand you correctly, you are in favor of an official protocol that includes waterboarding, and methods "far, far beyond" waterboarding, at least for *some* detainees.

As you note, we apparently disagree about whether these techniques do, in fact, constitute "torture" as a matter of law. I happen to think they do. Waterboarding, for instance, was a classic form of torture used by Torquemada and other tyrants. We have prosecuted military personnel for "torture" in the past when they have used waterboarding. I'm fairly confident that if our enemies used waterboarding on U.S. detainees, the President and all 535 members of the Congress (not to mention the general public) would call it "torture," and we would unhesitatingly prosecute such conduct as "torture." Most importantly, it seems to me that, even under the narrower U.S. definition of "torture," waterboarding is, in fact, specifically intended to result in severe physical suffering, and thus *is* torture.

Perhaps I'm wrong about all that. (I welcome any legal arguments to the contrary.) Perhaps it's not "torture," as such. And one thing is certainly clear: You and I disagree on whether it's "torture."

But regardless of whatever nomenclature one chooses to use, my understanding is that you propose a protocol with techniques including waterboarding and methods "far, far beyond it." As you know, I was a bit taken aback by this suggestion (mostly because you had earlier been proposing a strong U.S. embrace of the standards of Common Article 3). But I take your views and perspective very seriously, and would appreciate being corrected if I have erred in any particular.

Thanks, and my apologies once again for any misunderstanding.

Marty, likewise, I apologize for overreacting in that note above - I wrote hastily.

Taking into account something that Diogenes wrote about this on my blog - he wrote to the effect that none of us were experts in actual interrogation and should therefore be careful about conjecturing what might or might not work - I do regret saying that I would endorse things "far, far beyond" what is now official policy, having no particular expert idea what those might be.

But, yes, I do think that in the Zarqawi situation, waterboarding is acceptable, as are cold cell and long standing. I do not think that in and of themselves, Torqemada notwithstanding, they constitute actions which are so far beyond the civilized as to be torture - at least not when done to someone such as Zarqawi whose information could indeed save many Iraqi lives.

There are two things to note here. The first is that (thinking it over from my last post), I do not think the "high value" detainee is morally the same as the ticking bomb scenario. First, it is not hypothetical, as Iraqi forces have once captured and mistakenly let Zarqawi go and might well capture him again, and second, the value of the information is partly short term, but mostly long term and, in that sense, not justified by the immediate threat of the ticking bomb hypothetical. The same applies to at least some of the people held in secret detention that even Human Rights Watch admitted, despite its preference to see them put in the regular criminal justice system, were bad, bad guys (see the quote in the NYT story, don't have the cite offhand).

The second, however, is that so treating Zarqawi requires recourse to the principle that if you know to a certainty that you have Zarqawi, his culpability allows you to take measures against him short of torture (however you define it) that you would not be permitted to take against someone whose status was genuinely unknown to you. This is an endorsement of waterboarding Zarqawi, but it is exactly the opposite of waterboarding a detainee about whom you have no information. As to the latter, I believe morally you can do less to him than even a generous reading of the McCain amendment now allows.

That principle is not now incorporated into policy. On the contrary, we have an official set of rules that set a standard which, in my view, allows far too harsh a treatment against someone about whom we genuinely know nothing at all, yet too easy a standard against someone, eg Zarqawi, about whom one knows only too much. In my view, we need a standard for interrogation short of torture which takes what we already know, if anything, about the detainee into account in our treatment of him. Not everyone would agree this is a correct moral principle - David Luban, with whom I've corresponded a bit about this since my post about his article, has expressed strong doubts that this is morally right (although it was a passing remark and shouldn't be taken as defining necessarily his view).

Maybe he is correct. But the principle corresponds to many people's moral intuitions (well, mine anyway) and I certainly think it deserves to be debated in the formulation of interrogation policy - the failure to do so is one reason I have trouble with both the McCain amendment and the Bush administration's position (a position which, for a long time, has been only indirectly about interrogation policy and mostly about executive authority.

As to the McCain amendment itself. It is a compromise that, like all good compromises, leaves everyone somewhat dissatisfied. Its most positive step is that it reflected the involvement of Congress in a public debate over what is acceptable and not, and the end of the Bush administration's position that this is all a privileged exercise of executive power. If the struggle against jihadist terror is to go on for the long term in some form, in the way in which President Bush has repeatedly said - and convinced me - then it must do so on a bipartisan, legislatively mandated basis, not as the attempt by a waning, second term administration to husband its executive power. The form of the institutional struggle against jihadism will of necessity be a compromise between many factions and interests, but it will die with the next president, Republican or Democrat, unless institutionalized through the Congress.

A crucial element of that is defining what can be done to detainees, what is acceptable and not. Our repeated flash point - alas, I don't think you would have even noticed my blog post had I not favorably mentioned waterboarding - has been deeply different, deeply personal reactions over the margin of what is and is not torture. Those divisions run across the American and, to judge by recent polls, international publics. In those circumstances, the only way I know to resolve the difference is by open debate in democratic institutions - it cannot be settled for the United States in the CIA, the White House, the OLC, but only in the Congress. So I welcome greatly the move to bring this debate to Congress and the public. I have views, as do many people, but the most important thing is to reach conclusions on such deeply contested matters democratically.

That said, I still would have preferred - and would prefer, in the fuller debate that I hope will still occur over these matters in Congress - that the standard that be adopted be taken from Common Article 3. Not that it be taken to apply as a legal matter, but the position taken by Matthew Waxman, in his battles with Addington et al., that although it does not apply as a matter of international law, it still provides the best available standard for defining the actual practices that are acceptable and not acceptable. I think it is a better standard than the McCain amendment's reach to US constitutional standards that are about a very different kind of detention and a very different kind of detainee.

That said, my reading of the history to CA3 and the debate surrounding it would suggest that its framers would not have understood for a moment that someone who, in possession of information that could lead to the prevention of massive violations of the Geneva Conventions themselves - direct terror attacks upon civilians - would nonetheless have to be treated according to the same standards as a soldier under Geneva 3. The CA3 standard was intended, as I understand its history, to afford a minimum standard of treatment, equivalent in the most basic essentials, to standard POW treatment - to a combatant who had comported himself in accordance with the laws of war. That was the template - the civil war combatant who might indeed be tried for treason by his government, but who had not himself engaged in what, in international war, would be grave breaches. I find no basis in the (admittedly relatively sparse) history of CA3 for thinking that this same standard- short of actual torture - would apply to someone in possession of knowledge leading to massive violations of the laws of war, the direct attack upon civilians. Note that this is not talking about the captured combatant in possession of knowledge that might spare his opponent's troops from harm, but instead knowledge which, if obtained, might prevent serious violations of the laws of war themselves. I do not think this position is inconsistent with CA3 -far from it.

But this, too, is subject to much debate, especially given that CA3 has a relatively sparse history. Fundamentally, I think that this, too, must be carried into Congressional debate, as part of a systematic formulation of what is acceptable and not. At bottom, the widely varying reactions to concrete practices, and under different circumstances, mean that there is no alternative to a casuistical approach, taking each in turn. Abstract formulation of a standard will only get us so far - and while it has allowed the administration maximum freedom of action and discretion - and likewise its opponents maximum freedom of criticism - the time has long since come to take each practice and technique and decide about it, one by one, in Congress and before the public.

I do apologize for my earlier nastily personal remark - I hit the send button hastily. I should add that on my blog, I do change my mind about things if I think I've been wrong - it is a blog, after all, and I write quickly in first draft mode, not as final product. I've identified a couple of those areas here; others where I remain convinced I'm right. But it is very helpful to discuss these issues with you, precisely because of the important areas of disagreement. Best wishes, Ken Anderson

ps. Let me add one thing about a "systematic protocol of torture" in the ticking time bomb scenario, that you mention above. As I said in my earlier post, if you are commited, as Krauthammer is, to the possibility of torture in the ticking time bomb scenario, and if you are committed to it on what seem the only possible moral grounds, viz., sheer consequentialism, then consequentialism will force you, it seems to me quite uncontroversial that you must consider whether your torture will be effective. If it will not, then you cannot do it; if you propose to do it, you must propose to do effectively - which might very well require that you consider how you are going to do it in advance. I don't think most consequentialist moral philosophers would have much difficulty accepting that - if there are moral problems with that position, they lie with the proposition that it would be okay to torture even in those circumstances, not with the proposition that if you are going to torture, you had better do it effectively. In any case, in that part of the discussion, I was dealing solely with the ticking time bomb scenario as Krauthammer presented it which, I grant, is mostly hypothetical. The real issues arise in the (different) "high value" target discussion.

pps. I realized just now that I had skipped over the first part of your original post, and didn't see about your ankle surgery. Get well soon, and hope it will be as good as new. KA

I am very troubled by the intemperate nature of some of Ken Anderson's remarks above, though he has pulled back in the end. Marty cited and linked to Ken's comments, and his characterizations strike me as more than fair. It is very clear from Ken's comments that he does not endorse a "bright line" prohibition on torture, though the acceptance of a humanitarian baseline is a saving grace. (I read Ken's comments several times and still have problems reconciling some of the threads, though blogging exists to work things through, so it's unreasonable to expect a polished final product from such a process). Ken wrote extensively adopting much of the reasoning and the rhetoric (and indeed, the most provocative aspects of the rhetoric) of Charles Krauthammer. For my part, I find it extremely difficult to understand how a scholar of law of armed conflict can embrace such views. I don't understand how anyone - least of all an LOAC writer - can suggest that waterboarding is not torture - indeed, that is what US courts and courts martial have uniformly held.

Diogenes, I'm sure my various comments have changed over the course of the discussion; I don't regard blog posts as final words on things. I have an unrelated question for you - in a much earlier post, you mentioned that you or someone you knew, I don't recall, was writing a review in, I think, the New York Law Journal on the ICRC customary international law study. I haven't seen it, wondered if you knew if it had come out, and where - or any other reviews that have come out on the study. I've finally finished reading it, and once past the little book ms. I am finishing on global governance and UN reform, I want to write on that. Although I have a feeling it will not strike you as any more worthy of a scholar of LOAC than my comments on interrogation.

Also, here is Professor Thomas A. Smith, of the University of San Diego Law School, commenting on Professor Luban's Washington Post article, at the group blog The Right Coast, date December 17, 2005.

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