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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts At Last, the Issue is Publicly Joined . . . and When All the Smoke has Cleared, the Central Question is Quite Simple
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Friday, September 15, 2006
At Last, the Issue is Publicly Joined . . . and When All the Smoke has Cleared, the Central Question is Quite Simple
Marty Lederman
And it is this: Should the CIA be legally authorized to breach the Geneva Conventions by engaging in the following forms of "cruel treatment" prohibited by "common" Article 3(1)(a) of those Conventions?:
Comments:
Good post Marty.
My analysis is that Congress has no authority to authorize violations of Geneva in the first place. (1) Each of the four Geneva conventions contains a clause on denunciations, which states: "Each of the High Contracting Parties shall be at liberty to denounce the present Convention. "The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High Contracting Parties. "The denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated. "The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience." GC III art. 142, GC IV art. 158. Under the supremacy clause, that is US law, and the principle that one does not change or suspend the rules during an armed conflict is nothing new. The very first US treaty that touched on this was the 1785 Treaty of Amity and Commerce with Prussia, which states: "[I]t is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this & the next preceding article, but on the contrary, that the state of war is precisely that for which they are provided, & during which they are to be as sacredly observed as the most acknowledged articles in the law of nature or nations." Id. art. 24. (2) Even if you make the Geneva conventions vanish, what remains are the Nuremberg Principles and customary law going back to Hague 1907, the Lieber Code (1863), and beyond. The Bush administration's war crimes will still be crimes against humanity, and any effort by Congress to provide them cover for those crimes will also be a crime. What people need to understand is that no terrorist is as a great a threat to us as a government that will not obey our own laws. Bush and Cheney are criminals, and that is all that they are.
"The question is not simply whether, in the abstract, it would be a good or acceptable idea for the United States to use such techniques in certain extreme circumstances on certain detainees. ... [T]hat is obviously a question on which there is substantial public disagreement, much of it quite sincere and serious." Really? Perhaps it is a serious question if we limit ourselves to a "ticking bomb" hypothetical. The language "certain extreme circumstances on certain detainees" amounts to a "ticking bomb" hypothetical, because, in reality, if torture is allowed, it will be used indiscriminately, as it has been. In the real world, whether torture is good does not seem to be a question upon which reasonable people differ. There seems to be unanimity among reasonable people that torture produces no valid intelligence and serves no purpose except putting our soldiers at risk. Bush and Cheney's contrary view can be explained only by their particular psychological needs.
So, if we were to use techniques like those used against the mastermind of the 9/11 attack -- techniques that even Graham and McCain acknowledge allowed the U.S. to stop additional attacks inside the U.S. -- we should not use them because they could be construed as being in violation of of the Geneva convention.
I think the appropriate phrase is that our Constitution is not a suicide pact. The Constitution trumps the Geneva Convention so I'll go with it. If we use techinques that have proven successful in stopping attacks, we should use them. It is a false premise that doing so will ut our soldiers in greater danger. When the militant Islamists capture our soldiers they behead them -- they certainly do not follow the Geneva Convention.
jdri - I suggest that you read this post from an actual solider on this subject - http://time.blogs.com/daily_dish/2006/09/what_weve_lost.html
In any case the actions of the terrorist should have no impact on our actions. Have we come so far from that "Shining city upon a hill"?
President Bush repeatedly asserted today at his press conference that the problem is merely one of ambiguity, that all the CIA is seeking is clarity about what Common Article 3 prohibits. (At the same time, he and his administration have refused to say specifically what interrogation techniques "the program" has employed.)
As I understand it, DOD just clarified with specificity in the new field manual what is prohibited. Why cannot the War Crimes Act simply reference that same specificity? Isn't it because Bush, Hayden and other executives know -- but are afraid to say out loud -- that the CIA techniques unambiguously violate those specific standards?
It is not simply a matter of whether militant Islamists behead American POWs. The following, pasted from Andrew Sullivan's blog, is from a marine describing his experience in Desert Storm:
If those men had even put up token resistance, some of us would not have come back. But they didn't even bother, and surrendered at least in part because of our reputation. Our two hundred year old reputation for being fair and humane and decent. All the way back to George Washington, and from President George H.W. Bush all the way down to a lance-corporal jarhead at the front. Its gone now, even from me. I can't get past that image of the Iraqi, in the hood with the wires and I'm not what you'd call a sensitive type. You know the picture. And now we have a total bust-out in the White House, and a bunch of rubber-stamps in the House, trying to make it so that half-drowning people isn't torture. That hypothermia isn't torture. That degradation isn't torture. We don't have that reputation for fairness anymore. Just the opposite, I think. And the next real enemy we face will fight like only the cornered and desperate fight. How many Marines' lives will be lost in the war ahead just because of this asshole who never once risked anything for this country?
I think the appropriate phrase is that our Constitution is not a suicide pact. The Constitution trumps the Geneva Convention so I'll go with it.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." -- Article VI For all the talk of suicide pacts, there appear to be people who don't mind torturing the Constitution to death.
Although the exact details of this program might change, more important is the arguments used by George Bush to push it through Congress: that these harsh techniques will prevent future attacks.
Think about this: we are not safe from 20 guys with box cutters! What attack is Bush talking about? Another 9/11? If our security relies upon us catching a terrorist who is planning an attack or knows the details of an attack, we should all be very afraid. Because what limit is there? This belief that we need to catch and torture people to ensure we don't get attacked again means that nobody is safe. The argument is essentially that our government can do anything if they think it might prevent an attack.
During the Second World War in Europe, at its very end, the Wehrmacht was far more likely end resistance before the British, French, and American forces, which had a reasonable reputation for humanity, than before the Soviets, who had raped and murdered from East Prussia and Pomeriania on. This fact saved American lives.
And, really, if these techniques are all that effective and efficient, why not use them for everything? Homicide investigations, child molestation investigations, down even to that, in any Republican's eyes, most forgiveable of crimes: tax evasion. I'm surprised at Bush's reticence. What a piker.
Tom _i: You don't need to refute Bush's arguments, because they are not worthy of being called "arguments" and are probably not even intended to be arguments. They are just fear-mongering.
Bush people appear dead scared of being held legally responsible for they misdeeds once a new Congress and administration take charge of things, and this appears to be the primary motivation for almost everything they do these days.
Evidence for it is everywhere. Take Specter for example - it is now quite clear that his primary goal was to protect Bush from legal consequences of his violations of surveillance statutes. Everything else in his bills is either a smoke screen or legal padding to hide his true intentions. And they are obviously quite desperate about it as witnessed by Spoecter's reckless willingness to take the country back (via his bills) to pre 1978, Hooverian days or by his public lies about including explicit blanket amnesty for Bush in his bill. The current discussion likely has a similar origin. It seems CIA concluded that they could be facing open courts ("War Crimes Act") once Bush is gone, so they went to their old boss papa Bush who out of sense of loyalty committed himself to get Junior to do something about it. And as seen yesterday Junior accepted the challenge wholeheartedly. "Partners in crime" so to speak. The need to shield the CIA for their deeds not the future "effectiveness" of CIA interrogators is what is really driving Bush here.
There is another aspect to all this apart from international fallout if Congress accedes to Bush's demands and that is why on earth only CIA should be permitted such techniques?
FBI after all is as good an agency as CIA and they may need to resort to "alternative" techniques when interrogating serious domestic "terror" suspects too. Think Mayfield or some eco-terrorists for example. Same thing applies to local police, being able to "force a prisoner to stand naked in a cell kept near 50 degrees, during which he/she is doused with cold water" would do wonders to the effectiveness of local law enforcement agencies in serious domestic cases.
And finally, as Lederman I see no connection here to Geneva's prohibition on "outrages against human dignity," and "humiliating and degrading treatment."
Let us be honest, if we really considered ourselves bound by Geneva as far as human dignity is concerned we would have to close down almost all of our prisons and, sadly, defrock quite a number of judges out there.
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