Everything you always [or never] wanted to know about Hamdan, Geneva Conventions, torture and US and international law
In a piece on the Georgetown Law Faculty Blog [Top Ten Myths About Hamdan, Geneva, and Interrogations] written soon after the Hamdan decision, law professor Marty Lederman explains what this decision does and doesn’t mean about the state of current US law on torture, and military tribunals:
In particular, Lederman clarifies the importance of the Geneva Convention’s Common Article 3:
MYTH NO. 6: Common Article 3′s limitations on interrogation are no more onerous than those already imposed by domestic statute.
Richard Samp: “It is hard for me to believe that it will ever be deemed to impose standard stricter than those already imposed under U.S. law.” See also David Luban, who suspects that the Administration may try to construe CA3 merely to impose the same requirements as the Due Process Clause.
FACT: Common Article 3 more clearly prohibits a broader range of interrogation techniques than the most restrictive domestic statute, the McCain Amendment.
By its terms, the McCain Amendment only prevents interrogators overseas from doing what the Due Process Clause would prohibit for interrogations here in the United States — namely, conduct that “shocks the conscience.” The Court has recently suggested that the “shocks the conscience” test turns, at least in part, on the reasons for the government’s conduct. City of Sacramento v. Lewis, 523 U.S. at 849. This doesn’t mean, of course, that a worthy objective automatically saves an extreme technique from invalidation under the “conscience-shocking” test. At least three, and presumably at least five, of the current Supreme Court Justices are of the view that “[a] constitutional right is traduced the moment torture or its close equivalents are brought to bear.” Chavez v. Martinez, 538 U.S. at 789 (Kennedy, J., concurring in part and dissenting in part). It is safe to say, I think, that some of the more extreme reported CIA techniques — waterboarding and cold cell, say — would invariably, or almost always, shock the conscience. Therefore, the McCain Amendment might take certain previously approved techniques off the table (which is why the Vice President’s office fought so hard to oppose the McCain Amendment). But beyond that, its effect as to particular interrogation techniques short of “close equivalents” to torture is uncertain. Those same Justices have indicated that “severe compulsion” would shock the conscience in the context of a criminal investigation. Id. at 794. But how this would translate to the context of interrogating Al Qaeda suspects for the purpose of trying to secure valuable terrorism-related intelligence is anyone’s guess. There is virtually no caselaw applying the “shocks the conscience” test in circumstances such as those at issue here.
There are three significant differences when we move to consider the standards of CA3.
First, those standards are much more restrictive, as the plain terms of CA3 indicate: CA3 proscribes, inter alia, “violence to life and person, and “outrages upon personal dignity” and “humiliating and degrading treatment” — without qualification. These standards are not — at least on the face of it — “contextual”; they don’t shift with the reasons for the interrogation, and they appear to prohibit much of what the Pentagon and CIA have been doing (although admittedly there will be ambiguity at the margins of some techniques, e.g., When does sleep deprivation cross the line?)
Second, in contrast to the McCain Amendment and Article 16 of the Convention Against Torture, CA3 is not subject to a congressional or Senate understanding that it is limited to the conduct that would be prohibited by the U.S. Constitution.
Third, the McCain Amendment has no enforcement mechanism, and therefore if OLC were to adopt a very narrow view of what it proscribes (relying, on, e.g., City of Sacramento v. Lewis), the CIA and DOD would probably follow that legal advice. But as Justice Kennedy stressed in his concurrence on Thursday, CA3 violations are punishable as war crimes. See 18 U.S.C. 2441 (defining “war crime” to mean, inter alia, “any conduct . . . which constitutes a violation of common Article 3″). One thus has to imagine CIA and DOD interrogators and counsel will be very wary of going close to the legal line — as they should be — and that therefore an implausible DOJ interpretation of CA3 as being limited to Due Process standards is unlikely to be accepted at the operational level. (For similar reasons, Peter Spiro’s suggestion that the President might simply issue an interpretation of CA3 that is inconsistent with the Court’s — and declare that he will abide by the Court’s interpretation only in the context of commissions, and not interrogations — seems implausible to me.)
Interestingly, as I’ve assumed to be the case, Lederman rejects the view floating around that Hamdan allows, or even make likely, war crimes trials for actions conducted before the decision was handed down.
He also thinks that amending the War Crimes Act to allow the CIA’s barbarisms would not be easy:
There are, however, several significant obstacles to such a legislative initiative. Most importantly, if we enact such a statute, it will mean authorizing U.S. officials to act in violation of the Geneva Conventions. Although this fact will not affect the domestic operation of such a statute (at least if Congress’s intent is clear), it would be a fairly momentous development internationally for our legislature to intentionally place the U.S. in violation of the Geneva Conventions. I share the concern of my colleague Carlos Vazquez, who writes that “[o]penly rejecting the Geneva Conventions would of course be a terrible idea, given the protections they provide to our troops. I assume (and hope) that such repudiation is not within the range of plausible options.”
Moreover, because the War Crimes Act specifically provides that violations of Common Article 3 are war crimes, Congress would also have to repeal or amend that portion of the War Crimes Act in order to make lawful what Common Article 3 and the War Crimes Act currently forbid.
Finally, Senator Graham and like-minded legislators might find that drafting a statute to authorize violations of Geneva is not as simple as may first appear. Which prohibitions of Common Article 3, exactly, would this new statute authorize the Executive brnach to violate?: Violence to life and person? Cruel treatment? Outrages upon personal dignity, in particular humiliating and degrading treatment? Do we really want the U.S. Code to establish conditions under which federal officers may degrade detainees in their custody?
Of course, other lawyers don’t agree totally with Lederman’s interpretations. They’re lawyers, after all. But interpretations of law are influenced by public opinion. So our efforts to make sure the United States ceases being a torturing state can influence future legal opinions.
2 comments September 17th, 2006