Friday, December 16, 2005

The McCain Amendment -- What Would the Law Be, Anyway?

Marty Lederman

So, if the McCain Amendment is enacted, what would the law of interrogation be, anyway? A quick summary:

1. There would be few, if any, geographical distinctions -- what's permissible at a secret Polish site should be the same as what's permissible in South Carolina. Senator McCain is to thank for this welcome development.

2. Torture is categorically prohibited -- as it has been throughout the past four years. "Torture" is defined, for purposes of domestic law (and, arguably, our treaty obligations) by the Senate's understandings, which require a specific intent to inflict severe physical or mental pain or suffering. Severe mental pain or suffering consists of prolonged mental harm. As the Levin OLC Memo explained, there is "little guidance to draw upon in interpreting this phrase"; all that can reasonably be said for certain is that the mental damage "must extend for some period of time." The Levin Memo also concluded -- incorrectly -- that "severe physical suffering" requires suffering for an extended duration, or persistent suffering. This may explain why DOJ apparently concluded that waterboarding was not necessarily torture -- but the legal premise is wrong: The statute does not require that severe physical suffering be extended, or persistent. Waterboarding is, in fact, specifically intended to result in severe physical suffering, and thus it is torture (and a war crime), even under the narrower U.S. definition. (The same would appear to be true for "Cold Cell" and "Long Time Standing," as well.)

3. Assaults are categorically prohibited (see 18 U.S.C. 113) within the Special Maritime and Territorial Jurisdiction of the U.S., which is defined (18 U.S.C. 7) to include "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."

4. For the armed services, there are longstanding, categorical criminal prohibitions, under the Uniform Code of Military Justice, on assaults (including threats), cruelty and maltreatment.

5. Pursuant to Article 17 of the Third Geneva Convention, "[n]o 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."

In general, this means that the techniques used on POWs must be limited to those traditionally included in Army Field Manual 34-52, as reasonably construed (i.e., not as construed by the Schmidt Report).

6. The law of "rendition" remains much as I described it back in August: not much has changed.

7. All U.S. personnel must refrain from conduct that shocks the conscience. This is the result of the McCain Amendment. Although we don't know precisely how this standard would or should be applied to the interrogation of Al Qaeda detainees who may have valuable intelligence, it plainly lays down a marker that would materially affect current CIA practices.

* * * *

So, what more is needed? This much, at a minimum, I would say: A statute requiring strict adherence to the standards of Geneva Common Article 3 -- prohibitng "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." As I explained here, this is precisely the proposal endorsed by the 9/11 Commission, and by many military officers eager to restore the military's best, and historic, practices.

It is quite possible that this standard of conduct already applies to our treatment of all detainees, as a matter of binding treaty obligation. (That is, for instance, the thrust of Judge Williams's partial dissent in Hamdan, discussed here.) In any event, it is the standard that the United States was committed to upholding for over 50 years, in all manner of conflicts, against all sorts of enemies, even where the Executive branch did not think that it applied as a matter of treaty obligation. All that changed with the President's directive of February 7, 2002.

As the 9/11 Commission proposed, Congress should by statute restore the tradition that the President overturned with the stroke of a pen. In conjunction with the McCain Amendment, codification of Common Article 3 would go a long way to preventing the sorts of detainee abuse scandals that we have seen over the past two years.


Marty, deepest thanks for all the posts on the McCain and Graham amendments.

As lucid as ever, so the pain-killers aren't having any effects detectable on this side of the screen. Hope they're having the intended result at your end!

You have made an error in conflating Prisoners of War, who are legal combatants and terrorist who are, under the Geneva convention, illegal combatants. The Geneva convention places illegal combatants under a sentence of death.

The Geneva Convention only protects those who make at least a prima facie attempt to comply with the spirit of the convention itself. The Geneva Convention explicitly exempts those who violate the convention itself from its protection. The reason for doing is practical. If fighting entities pay no penalty for violating the convention, then the convention will have no means of enforcement.

The McCain amendment will destroy the convention utterly by wrecking its enforcement. It will trigger a race to the bottom as combatants adopt increasingly brutal tactics secure in the knowledge they will face no penalty for doing so.

Shannon: Sorry, no error. Paragraph 5 of my post specifically deals with the *greater* protections accorded to POWs under the Third Geneva Convention. I don't assert that Al Qaeda detainees are entitled to a "no coercion" rule.

The real issue is Common Article 3, which provides far weaker protections than those provided to POWs. There's a very difficult question whether CA3 applies, as a matter of binding treaty obligation, to our conflict with Al Qaeda. That's the issue that split the panel in Hamdan.

But I'm assuming for sake of argument here that Common Article 3 does *not* apply, as a matter of treaty, to this conflict. Nevertheless, it's fairly undisputed that its standards do reflect customary international law -- and that the U.S. *abided* by such standards in every dispute from 1949 to 2001, even as to detainees who are not entitled to Geneva's POW protections (e.g., the Viet Cong). The President abandoned that tradition on February 7, 2002. My proposal is to incorporate CA3 standards by statute. That's not radical; and it doesn't treat Al Qaeda captives as POWs -- it would only take us back to where we had been for over 50 years before 2002.

I've got two major problems with this amendment that havent been addressed (and seemingly are bound for court):

The wording of the McCain Amendment directly defines Cruel, Inhuman, or Degrading treatment as that in violation of the 5th, 8th, and 14th amendment protections.

1.Self incrimination- Are Miranda warnings to be required for terroritst detainees? Seemingly if the 5th amendment protection against self-incrimination is to be taken seriously.

2.Due Process/equal protection- Holding detainees indefinately without charges or access to the outside world, does this 'shock the conscience?' Strong chance there is a court in this country that will think so.

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