Wednesday, September 06, 2006

Here's the Administration's Cruel Treatment and Torture Authorization Act

Marty Lederman

This is the bill the Administration has sent up to Congress. Make no mistake, the most important action has little to do with military commissions (although that stuff is certainly significant, too). Instead, focus ought to be on sections 5 through 7 (pages 77-84), which are, as I predicted here, collectively an attempt to authorize the CIA to engage in the sorts of "enhanced" interrogation techniques -- e.g., hypothermia, threats of violence to the detainee and his family, prolonged sleep deprivation, "stress positions" and waterboarding -- to which the President alluded in his speech today, and to immunize such conduct from any judicial review. (The President's speech is much more candid than the face of the Administration bill. The President bascially concedes that the Hamdan decision stopped the CIA techniques in their tracks -- and that the object of the Administration bill is to authorize them anew.)

Although section 6 in effect says that the U.S. will "comply" with Common Article 3 of Geneva even if such techniques are used, that's wrong. These techniques are -- at least in many cases -- "cruel treatment and torture" prohibited by Common Article 3. Thus, this bill would in effect authorize the United States to breach its treaty obligations. Perhaps that's something we should do -- perhaps not.* But if so, we shouldn't pretend that we're not engaged in such cruelty and torture, and we shouldn't engage in the fiction that we are in compliance with the Geneva Conventions. The decision to authorize such horrifying techniques, and to thereby be the first nation to adopt breach of Geneva as official state policy, is a solemn one, and it should be treated with the seriousness that it deserves -- without euphemism or obfuscation.

*The thrust of the President's speech is that such techniques -- let's call them "torture light," since the President is so insistent that we never "torture" -- are absolutely necessary to preventing terrorist attacks. Apparently the Pentagon hasn't gotten the memo. At a briefing this morning, Army Deputy Chief of Staff for Intelligence John Kimmons forcefully argued that:
I am absolutely convinced [that] no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that. . . . Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there.

Some of our most significant successes on the battlefield have been -- in fact, I would say all of them, almost categorically all of them, have accrued from expert interrogators using mixtures of authorized humane interrogation practices in clever ways, that you would hope Americans would use them, to push the envelope within the bookends of legal, moral and ethical, now as further refined by this field manual.

We don't need abusive practices in there. Nothing good will come from them.


Could you, or someone else, please explain how this bill can abrogate the War Crimes Act?

JD Goldstein

It doesn't abrogate the War Crimes Act -- it amends it to exclude the CIA techniques. See my previous post, linked.

Marty, first a question, and then some initial observations from a quick read of the proposal.

You state that the bill would autorize the CIA to engage in enhanced interrogation techniques and would immunize such conduct from judicial review. I see that the bill would strip courts of jurisdiction to hear claims brought by or on behalf of detainees, but, unless I'm overlooking something, what in the bill prevents prosecution of US agents under the War Crimes Act? Unless, of course, you mean to suggest that under the definitions of the bill, waterboarding et. al. would not be considered cruel or inhuman treatment.

A couple quick thoughts:
1. The definition of unlawful combatant is still extremely broad.
2. Evidence obtained under torture would not be admissible, but evidence obtained through “coercion” would be.
3. The commission would be able to hear classified information without the presence of the accused, when disclosure of the information could be reasonably expected to cause damage to national security. It’s a bit more complicated than this, but the upshot is that the accused could be convicted on the basis of evidence that he hasn’t seen, although some sort of redacted summary of the evidence would have to be provided.
4. The definition of the prohibition on cruel or unusual punishment is from the UCMJ, but it’s just bizarre and doesn’t comport with the requirements of CA3: “Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.” Cruel, inhuman or degrading treatment or punishment clearly means more than this, including anything that doesn’t comport with human dignity. the bill appears to contain 3 different definitions of cruel and inhuman treatment: section 1003 of the DTA, the meaning under 18 USC 2340(2), and the "flogging" definition of the UCMJ.
5. The bill still includes conspiracy as a crime triable by military commission. Ironic, that the cruel and unusual treatment, if committed by an unlawful combatant, is a crime punishable by commission, but a detainee has no right to challenge that sort of treatment in a court of law.
6. Unlike the DTA, this proposal would effectively strip the court of jurisdiction to hear any challenges to the treatment of detainees, including habeas petitions and ATS suits (except appeal to the DC Circuit of a final judgment), because it would apply to “any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this Act.” They’ve apparently learned their lesson and included the “pending on” language. But this still would leave the very difficult question of whether the constitutional, as opposed to statutory, core of habeas has been suspended in violation of the Suspension Clause.
7. Section 6 amazingly declares that Section 1003 of the DTA (the McCain Amendment) satisfies the CA3 requirement and expressly declares that “no person may invoke the Geneva Conventions or any protocols thereto as a source of rights… for any purpose in any court of the United States” and that this will not be construed to affect the obligations under the Geneva Conventions.
8. Section 7, predictably perhaps, but still quite shockingly, amends the War Crimes Act, such that all violations of CA3 are no longer defined as a War Crime. Under the proposal, only “serious” violations (torture, cruel or inhuman treatment, murder etc.) constitute war crimes. The upshot is certain “grave breaches” of the Geneva Conventions, such as “outrages upon personal dignity, in particular humiliating and degrading treatment,” which may include the very fact of secret detention, and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” no longer would be considered War Crimes.
9. I’m not quite sure what to make of the retroactive application of the proposed law.

What I love about the statute is Sections 950v(b)(11) & (b)(12). Yes, that's right, both torture and "cruel and degrading treatment" are war crimes, triable by military commissions and punishable by any sentence up to and including death in certain circumstances. Talk about chutzpah!

Also, that definition of "terrorism" in Section 950v(b)(23)-- killing people to influence civilians or retaliate against governments-- seems to apply to quite a lot of US government activities lately, doesn't it?

Dear Marty: do the pages you cite in your post, pp. 77-84, actively describe or list the abusive CIA techniques you describe, and ask Congress to allow them, or simply NOT rule them out. I didn't see specific references to sleep deprivation,etc. in the body of the legislation. I'm a layman and a freelance journalist for the Washington Monthly who previously sent a private email to you. Thanks, Art

Art: As I explained in my previous post,, the War Crimes Act amendments simply, but conspicuously, fail to cover the CIA enhanced techniques, even though the listing of prohibited acts is otherwise rather detailed. The other important piece of it is section 6(a), which provides that satisfaction of the McCain Amendment will (allegedly) satisfy Common Article 3. But we know, including from the President's speech this morning, that the Administration has construed McCain to permit the CIA enhanced interrogation techniques (otherwise, such techniques would have been unlawful). I've discussed the whys and wherefores of that in several other posts, dealing with the due process "shocks the conscience" standard that is the touchstone for the McCain Amendment.

My question is this: where does "coercion" end and "torture" begin, as far as the law is concerned? This seems to be the crux of the issue, at least regarding this bill as it relates to the torture debate.

Thanks for the excellent analysis, as usual. I don't think we should call the techniques "torture light", though, since they simply are torture according to most definitions except that of DoJ. The impressive menu of euphemisms in Bush's speech yesterday should not force us to couch our disagreement in milder terms.

I know this thread is about the torture aspects, but I still don't understand how the Bush administration hopes the commission part of the law will stand up, given that CA3 requires "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples". If the Bush administration insists on withholding evidence from detainees (or their lawyers) then surely the Supreme Court will strike it down immediately. Also, with regard to torture, how can the government cut off judicial review of Geneva Conventions breaches when the Constitution says that treaties are the highest law of the land?

Ginger: A later-enacted statute -- which is also, of course, the "supreme Law of the Land" per Article 6 -- would, for purposes of domestic law, supersede the requirements of the Geneva Conventions, even though it would mean that we're breaching those treaties.

Since "cruel and degrading treatment" is a warcrime, and we all know that being subjugated by a woman is cruel and degrading to AQ members, and presumably to a lot of less religiously zealous insurgents from South Asian cultures, ought we not remove our female service members from combat zones, and prevent them from having any dealings with AQ and their allies on the battlefield or post-capture?

I'm not being facetious here. If we take the Geneva Conventions (which this bill mirrors) seriously, how do we get over that hurdle? It strikes me that on its face the fact that we have female military police and combat pilots, in and of itself, is a warcrime, based on prohibitions on "cruel and degrading" treatment. What could be worse for an ultra-macho talib than to have his unit shot up by an Apache helicopter pilot named Jenny, or to be guarded in an EPW camp by a woman from Western Maryland? It is the ultimate humiliation for them.

Your analysis missed an important point. That is the elimination of the words "or any protocol to such convention to which the United States is a party" from the War Crimes Act. There are a large set of expanded protections (protocols) to the base Geneva Conventions document that were voted into practice in 1977. The enumeration of a small subset of these additional protocols in the proposed bill means that the US won't have to conform to the other Protocols we've already agreed to.

Many of them detail the role of the International Red Cross in determining the state and treatment of detainees. This Bill will remove the US' obligation to this. Another protocol ignored says we shall not attack medical units.

They're all at the following URL:

we all know that being subjugated by a woman is cruel and degrading to AQ members

No we don't.

I'm not being facetious here.

Yes you are.

Does the new proposal allow the military to try the USS Cole and Kenya Embassy bombing in the new tribunals?

Here is a website that provides an easy way to write to your senators to tell them not to give a free pass for torture and war crimes (from

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