Tuesday, July 11, 2006

Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It? -- and a Short Riff on the Haynes Nomination

Marty Lederman

Breaking news: Pentagon General Counsel Jim Haynes has ordered senior defense officials and military officers to apply Common Article 3 of the Geneva Conventions to all detainees held in US military custody. The DOD memo can be found here.

Contrary to the Financial Times story linked above, it's not a "major policy shift" -- it is simply a directive to DoD officials to comply with a holding of the U.S. Supreme Court. (For all of its startling assertions of Executive power, the Bush Administration has rarely if ever suggested that it would not abide by final determinations of the Supreme Court. But see the President's oddly phrased signing statement that he will construe the McCain Amendment "consistent with the constitutional limitations on the judicial power.")

The DOD memo assumes that the Supreme Court decision is binding on the application of Common Article 3. It begins: "The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda." This is a correct, uncontrovertible statement of law. (The Financial Times article argues that the so-called "policy shift" renderd "moot" an alleged unresolved legal question: "In the wake of the Supreme Court decision, legal experts had disagreed about whether the ruling meant that Geneva protections should be given to only those detainees brought before the military commissions, or to all detainees held at Guantanamo Bay and other US military detention facilities around the world." Actually, that's not right: No serious "experts" would disagree that the Court's ruling compels some Geneva protections -- namely, the minimum, baseline protections of Common Article 3 -- for all detainees in our conflict with Al Qaeda. Nor does the DOD memo suggest otherwise.)

The devil, of course, will be in the details:

1. What about the CIA?

2. The memo does not state that the Administration agrees with the Supreme Court's interpretation of Article 3, and does not foreclose the possibility that the Administration will promote legislation that would undermine the Court's ruling. Will the Administration, for instance, propose any legislation amending the War Crimes Act, or authorizing conduct that Common Article 3 would forbid? Etc.

3. And a possible point of significant dispute and/or misdirection: The letter states, correctly, that "humane treatment" is the "overarching requirement" of Common Article 3. It juxtaposes this truism with a reminder that the President had already directed all U.S. Armed Forces to treat detainees "humanely." But what the Administration means by "humane," and what Common Article 3 means by "humane," are entirely different animals.

As discussed here, even under the President's directive of "humane treatment," DoD General Counsel Jim Haynes advised the SecDef that the following techniques "may be legally available":

-- forced nudity

-- forced grooming

-- "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress"

-- 20-hour interrogations

-- stress positions

-- the use of mild physical contact such as grabbing, poking and light pushing

-- waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and

-- "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

Moreover, as I discussed here, the DoD Schmidt report concluded that concededly degrading and humiliating techniques did not violate the humaneness requirement! -- including forcing a detainee to wear a bra and have a thong placed on his head during interrogation; tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks; forcing him to dance with a male interrogator; stripping him maked; placing Korans on a television "as a control measure"; and pouring water on the detainee during interrogation—17 times.

If this is what the Administration thinks Common Article 3 allows, it is dreadfully wrong, and we're being sold a bill of goods. Common Article 3 provides, in no uncertain terms, that "[t]o th[e] end" of ensuring humane treatment, certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment."

In other words, many techniques that were not prohibited by the President's "humane treatment" directive (as a result of a very unnatural intepretation of the word "humane") are prohibited by Common Article 3, including all humiliating and degrading treatment, and other "outrages upon personal dignity." This is something that the Administration should be required to address directly, if its new directive is to be worth anything.

* * * *

As the Financial Times reports, DoD General Counsel Haynes, he who ordered the new DoD directive, has a hearing before the Senate Judiciary Committee this very afternoon on his nomination for a lifetime appointment to the U.S. Court of Appeals for the Fourth Circuit. Coincidence? Fortuitous timing? You be the judge.

In the category of "memoranda we'd like to see," how about this one?:


July 7, 2006


FROM: William J. Haynes, II, General Counsel

SUBJECT: Counter-Resistance Techniques (Redux)

Dear Mr. Secretary:

You may recall that back in November 2002 I advised you that the following interrogation techniques all "may be legally available," notwithstanding the prohibitions in the Uniform Code of Military Justice against assaults, threats, cruelty and maltreatment:

-- forced nudity

-- forced grooming

-- "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress"

-- 20-hour interrogations

-- stress positions

-- the use of mild physical contact such as grabbing, poking and light pushing

-- waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and

-- "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

Oops. Scratch that. Sorry for any confusion.



In all seriousness, I should add the following: Haynes did not recommend that all these techniques be implemented. Indeed, his advice cut back on some of the techniques recommended by other DOD lawyers, and he advised the SecDef that "for policy reasons," a "blanket approval" of waterboarding and threats of death was "not warranted at th[at] time."

This point is stressed in a letter sent to the Senate Judiciary Committee today by Larry Thompson, Jim Comey, Jack Goldsmith and Pat Philbin, most or all of whom have been reported to be at great odds with the Vice President's Office and other hard-liners in the Administration on issues of Executive power. I worked with Pat at OLC, and I know Jack well. I have absolutely no reason to doubt that everything they write in this letter is true (including the fact that Haynes had little choice but to accept John Yoo's view of the law in 2003, especially if Yoo was being backed by the VP's Office and the White House -- the letter accurately describes OLC's role in the Administration, except that it does not note that OLC's legal opinions can be overruled by the AG and the President).

Even if all the letter says is true about Hyanes's character and his conduct -- and again, I assume it is -- I believe there is still reason to be concerned about his role in the torture scandal, for at least two reasons:

First, in that November 2002 memo to the SecDef, Haynes did conclude that all those techniques "may be legally available," which strikes me as shockingly wrong legal advice, in light of (at the very least) the clear prohibitions in the UCMJ (discussed in the Beaver memo that was attached to Haynes's memo) and the President's "humane treatment" directive.

Second, there is the question of Haynes's alleged role in finalizing the April 2003 DoD Working Group Report, and seeing to it that General Geoffrey Miller was briefed on that Report before heading off to Iraq -- see my posts here and here and, especially, Jane Mayer's article. Thompson, et al., stress that Haynes helped the SecDef narrow the "approved" techniques to 24, in his April 16, 2003 memo. But if Mayer's account is accurate, that 4/16/03 memo was a whitewash, and it was the Working Group Report (and the 3/03 John Yoo memo that inspired it) that became the basis for DoD policy in Iraq and elsewhere, until Jack Goldsmith himself disclaimed the analysis in those memos in December 2003.

Obviously, neither I nor the Senate knows all the details of these incidents -- and perhaps the published reports are inaccurate. But the incidents certainly raise questions that might be of interest to the Committee. (And, as I've said many times before, there's no question that the 3/03 Yoo memo should be publicly disclosed; there's no justification for keeping this key part of the historical record secret, especially when the recipient of the memo -- the person who acted on it -- has been nominated to the federal bench.)


This comment has been removed by a blog administrator.

I don't think that the memo even goes so far as to "direct DoD officials to comply with a holding of the U.S. Supreme Court."

What the memo says is, "aside from the military commission procedures, existing DOD orders, policies, directives, execute [sic] orders, and doctrine comply with the standards of Common Article 3" -- in other words, *nothing changes*.

This memo is pure window-dressing to create the false impression that the Pentagon is obeying the Court. You are surely right that the Haynes hearings are at play here, though I can't believe that the Senate cares enough to give Haynes's nomination a hard time.

When I saw the phrase "Haynes Nomination" in the title of this post, I was so shocked that I swore loudly and almost jumped out of my chair.

The 4th Circuit is hugely important because of the fallout from Padilla. The short version is that Bush lied to Judge Luttig in that court by trumping up the accusations (not formally "charges") against him and claiming that he was too dangerous to be given a real trial. Luttig agreed, making the 4th Circuit a "Constitution-free zone" in Balkin's words. When Bush tipped his hand and it became clear that Padilla wasn't actually bad enough to require those measures, Luttig tried and failed to reverse himself.

Now that Luttig's gone, any sane judge taking his position would be wary of taking anything this administration says at face value. That's why Bush needs an extremist for this position. Anything less will guarantee that he loses his ability to kidnap citizens in the 4th district and detain them without trial.

That's what's at stake in this nomination.

It will be interesting to see the questioning of Haynes. Certainly the England memo's release is tied to that hearing, and I think there is a very good chance that this will be made a significant issue.

Post-Hamdan people are struggling for cover to try to show where they "disagreed" with the policies put in place in the 2001-2004 period.

The obvious reason is that the Common Article 3 standards were not abided by under the humane/military necessity Presidential order. I have said in other places that the word "humane" as used by the Pressdent is an Orwellian term. Marty confirms that in his analysis.

Everyone agrees (see Bradbury of Justice testimony to the Judiciary Committee today) that post-Hamdan violations of Common Article 3 are violations of the War Crimes Act.

What they do not say is

1) that pre-Hamdan violations of the Uniform Code of Military Justice were most likely also violations of Common Article 3 subjecting soldiers to potential and actual court-martial. Post-Hamdan they face that same risk.

2) those not subject to the Uniform Code of Military Justice pre-Hamdan are chargeable for War Crimes (ignorance of the law not good enough) for their pre-Hamdan acts. That would be the high level civilian authority who put in place the pre-Hamdan policies ordered by the President.

3) Since the Detainee Treatment Act, violation of the cruel, inhuman etc standard in that act is likely a violation of the general federal conspiracy statute.

4) Post 9/11/2001 and pre-Hamdan war crimes were committed by the Administration with the acquiescence of Congress.

I hope that John Yoo turns states evidence given his isolation and he comes clean to a US or State attorney in exchange for immunity.

Ben Davis
Associate Professor of Law
University of Toledo College of Law

It is significant that the reference in the England memo to the President's prior directive only refers to "the United States Armed Forces shall continue to treat detainees humanely," and does not refer to the second very significant part of that memo that made those standards subject to military necessity. I think this can be viewed as a veiled rejection of the formulation of the President's memo.

does not refer to the second very significant part of that memo that made those standards subject to military necessity

Given Prof. Lederman's examples of how perversely they interpret "humane," I can't see that any exceptions would be needed.

As for Yoo's being "isolated," not under the current vice-presidency he's not. Addington is still in the saddle.

All this talk of Gitmo only makes me wish that General Clement had said the following during his oral argument in Hamdan. The liberals on the court really have become an embarassment:

Clement: You want answers?

Stevens:I think I'm entitled to them.

Clement: You want answers?

Stevens: I want the truth!

Clement: You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Justice Souter?

The President has a greater responsibility than you can possibly fathom. You weep for Hamdan and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Hamdan's treatment, while tragic, probably saved lives. And the commissions' existence, while grotesque and incomprehensible to you, saves lives...

You don't want the truth. Because deep down, in places you don't talk about at parties, you want them on that wall. You need them on that wall.

They use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline.

The President has neither the time nor the inclination to explain himself to a man who rises and sleeps under the blanket of the very freedom he provides, then questions the manner in which he provides it!

I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think Hamdan is entitled to!

How great would that have been? Clement would have gone down as a hero for the ages!

I agree that it would have been rather heroic if, as in your example, Paul Clement had, in a show of principle, refused to make any argument in defense of the procedures used by the ad hoc military tribunals and then tendered his resignation.

Washerdreyer 1, SarahWeddington 0

Only the most warped, authoritarian personalities among us could have walked out of A Few Good Men thinking that Col. Nathan Jessep's character was the supposed to be the "hero."

As I recall, he was arrested after confessing to violation of the Uniform Code of Military Justice, for ordering an illegal assault resulting in the death of a U.S. Marine.

A lot of your thorough comments help sort out the dynamic at this juncture. Neal Katyal at Georgetown's faculty blog now winding down the discussion there, highlights his own personal interest in the US Senate's Armed Services Committee hearing on reconfiguring the commissions there, and he references his own Slate article datelined yesterday there, essentially, he is deferring to the expertise of the all military witness list for the US Senate Armed Services Committee; see the USSASC website here for that list with links to their formal prepared remarks scheduled for tomorrow.

Your own complete article on that faculty blogsite was helpful, as well, there.

Dana Milbank's article today in WA Post fairly corroborates your perspective as well as the suggestion of Katyal, that yesterday's Senate Judiciary Committee hearing on the commissions consultations between congress and administration, was only the first and perhaps the least energized of these meetings engendered by Scotus' Hamdan decision; though the Milbank article is useful for its judgments and quotes from the hearing, it is far from being as useful as a true transcript. I will check the committee site for the transcript, should they decide to publish one to their web.

On the Haynes nomination, your assurances are very welcome, as the two courts near DC are obviously likely bulwarks for the administration wherever it might be inclined to temporize. The Senate Judiciary Committee so far has posted only Senator Leahy's statement, though the newly visitable Senator Kennedy journal site provides a statement of his own; one interesting link at the Sen. Kennedy site is to a letter cowritten with Senator Feinstein to Sen. Specter and Sen. Leahy petitioning the committee leadership to hold expanded hearings, as the presenters yesterday excluded a roster of 20 mostly military personnel concerned about the Haynes nomination.


FYI, the video of yesterday's Judiciary hearing on post-Hamdan is archived at Browse under the "Congress" category.

JaO,'s congress archive items seem offline at the moment. For some abstruse reason I find the linear perused word more informative than the companion video. I work in text almost exclusively. When c-span's archive becomes available online again, maybe I will have time to adjust the monitor settings so the audio is all that streams. I appreciate the helpful guidance.


Getting timely transcripts from congressional hearings is problematical.

Nowdays, for high-visibility hearings such as SC nominations, national news organizations such as the WashPost or NYT often post transcripts on their web sites. Those are the exceptions.

For many other hearings, if they were deemed to warrant coverage, there are commercial reporting services, including for example a service of Congressional Quarterly, that can provide transcripts. But that costs money.

The committee staff has its own draft transcripts, which they hold close and dear but occasionally let a visitor view.

Eventually, months from now, the Government Printing Office will publish the hearings in hard copy and electronic form.

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