Ambiguity (Part III)

by Katherine

(7th in a series. Previous posts: 1, 2, 3, 4, 5, 6)

Before I continue, I should probably explain why I am going into such excruciating detail about the differences and similarities between the requirements of Hamdan and those of the Detainee Treatment Act/McCain amendment. It's because based on the news stories and hearings on the response the Hamdan, I think the Bush administration is going to introduce a bill that: (1) strips the courts of jurisidiction over pending habeas cases at Guantanamo (the Son of the Graham Amendment, basically), and (2) amends the War Crimes Act so that it forbids the exact same things as the McCain Amendment.

The Washington Post has reported:

McCain said yesterday that at a long White House meeting, with Graham and national security adviser Stephen J. Hadley an agreement was reached that legislation would use the military code -- not the administration's plan -- as the framework, and a final bill would adhere to Common Article 3 of the Geneva Conventions.

The bill could adopt language crafted by McCain last year to ban torture at U.S. detention facilities that makes some changes to Common Article 3. For instance, it could drop the phrase "outrages upon personal dignity," which the administration sees as overly vague.

The New York Times has reported:

Senator Graham, who pointedly warned administration lawyers that the president would not win by fighting for his approach on trials, said in interviews that Common Article Three must be “reined in.”...

Mr. Graham said defining Article Three would be “the hardest part” of the debate on how to bring detainees to trial. He suggested that Congress could limit it in a way that resembled the language of the measure setting standards for the treatment of detainees that was written by Senator John McCain, Republican of Arizona, and signed into law last year.

“It says that every detainee will be treated humanely and that cruel, inhumane treatment will not be allowed against detainees,” Mr. Graham said. “Common Article Three with its language goes well beyond the McCain standard."

With respect to the military, CA3 does not actually go "well beyond the McCain standard." Military interrogators were already required to comply with the Army Field Manual on intelligence interrogation, which already complies with Common Article 3.  As far as the military, the only thing that CA3 does that is new is that it prevents the administration from amending the field manual to authorize "outrages upon personal dignity" and "humiliating and degrading treatment."

With respect to the CIA, the requirements of Common Article III really are different from the requirements of the McCain Amendment/Detainee Treatment Act. But this is not because CA3 is vague and ambiguous, while the DTA is clear. It's just the opposite: Common Article 3 clearly outlaws certain CIA techniques that the Detainee Treatment Act could be interpreted to allow.

The two laws actually sound quite similar when you first read them. The section of Common Article 3 that supposedly requires "clarification" is the ban on "outrages upon personal dignity, in particular humiliating and degrading treatment." The Detainee Treatment Act says that "[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." There's not a lot of difference between "degrading treatment" and "humiliating and degrading treatment."

But the McCain Amendment, unlike Common Article 3, includes this definition:

the term "cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.

Reading this, you might reasonably wonder how anyone could possibly object: Are human rights groups really going to demand that foreign terrorists be given more legal protections than the Bill of Rights gives to U.S. citizens? (I fully expect this some stirring floor speeches to this effect from Senators Lindsey Graham and Jon Kyl this fall.)

Here's the problem: the cruel and unusual punishment clause of the Eighth Amendment does not apply to interrogations of suspected terrorists, because they're not being punished, just interrogated for intelligence. That leaves you with the Fifth Amendment's Due Process clause, which courts have interpreted to forbid all treatment that "shocks the conscience." "Shocks the conscience" is a very vague phrase, and it's not a phrase that appears in text of the Fifth Amendment, so the Supreme Court has been cautious about applying it too widely.

In the 1998 case Sacramento v. Lewis, Justice Souter wrote that "concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking." Quoting a 1942 case, Souter explained that what shocks the conscience depends on "an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial."

What this means, in the context of a CIA interrogation of an accused terrorist, is anyone's guess. There isn't any case law on whether waterboarding Khalid Sheikh Mohamed shocks the conscience. The administration could certainly argue that the legality depends on the "totality of facts," and these include the facts that this man is a foreign national; imprisoned abroad; responsible for the deaths of thousands of innocent Americans;  has intelligence that we could use to prevent who knows how many terrorist attacks and save the lives of untold thousands of innocents.

The one case I do know of that discusses what the "shocks the conscience" test forbids in the context of the war on terror is Arar v. Ashcroft. Here is what Judge David Trager said:

While one cannot ignore the "shocks the conscience" test established in Rochin v. California...that case involved the question whether torture could be used to extract evidence for the purpose of prosecuting criminal conduct, a very different question from the one ultimately presented here, to wit, whether substantive due process would erect a per se bar to coercive investigations, including torture, for the purpose of preventing a terrorist attack. Whether the circumstances here ultimately cry out for immediate application of the Due Process clause, or, put differently, whether torture always violates the Fifth Amendment under established Supreme Court case law prohibiting government action that "shocks the conscience" - a question analytically prior to those taken up in the parties' briefing - remains unresolved from a doctrinal standpoint. Nevertheless, because both parties seem (at least implicitly) to have answered this question in the affirmative, it will be presumed for present purposes that the Due Process clause would apply to the facts alleged.

Judge Trager's said this in a ruling on a motion to throw out Arar's complaint before the case even went to discovery. At this stage of a case, judges are required to assume that all of the allegations in the plaintiff's complaint are true. Arar's complaint alleged, and Judge Trager had to accept, that Arar was not a terrorist; that the U.S. government has no evidence that he was a terrorist other than confessions that a few other suspects had made under torture in a Syrian dungeon; that the U.S. government flew Arar to Syria because we wanted Syria toterrogate and torture him; and that in Syria he had been severely beaten with electrical cables for weeks and locked in a cell the size of a grave for a year.

The judge was not sure whether this "shocked the conscience".

It's only dicta, and it's only a district court case. I would be surprised if the Second Circuit agreed with Judge Trager, and shocked if the Supreme Court did. But I don't know when the Second Circuit is going to rule on this appeal, and I would be surprised if this Supreme Court ever did. Right now, this is the case law we have on how the "shocks the conscience" standard applies to the war on terror.

I don't believe the administration has taken or will take the position that torturing known innocents is non-"conscience-shocking" as long as you do it with the intent of fighting terrorism. They didn't make that argument in Arar v. Ashcroft; that one was the judge's idea.

What's at issue is whether it shocks the conscience to use "enhanced interrogation techniques" like these, which the administration concluded fell short of torture and authorized the CIA to use against high level al Qaeda suspects in 2002:

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

I remember that when ABC news first published that list of techniques, a lot of people argued that they weren't torture; weren't even really that bad. All I can say to that is that CIA officers with firsthand knowledge of these interrogations disagree. According to New York Times reporter James Risen,

Several CIA officials who are familiar with the way the interrogations of high-value al Qaeda detainees are actually conducted say that there are no doubts in their minds that the CIA is torturing its prisoners. Water boarding is used, not just once to simulate torture, but over and over again, according to one CIA source. According to several intelligence sources, as secret CIA report describes how Khalid Sheikh Mohammed was subjected to the application of several types of harsh interrogation techniques approximately a hundred times over a period of two weeks. Prisoners have been forced into coffin-like boxes, forced into cells where they are alternately denied all light and put in brightly lit rooms and denied sleep for long periods. They are subjected to long hours of extremely loud rap music—Eminem is one favorite—and they are forced to stand or squat in “stress positions” for hours at a time. “If you read the interrogation reports, you see that what is being done is torture,” said a CIA source who has read some of the reports. “It is the accumulation of all the procedures, and how frequently they are being used, that makes it torture. The reports are horrifying to read."

(that's from page 32 of Risen's book, State of War).

I would also point out that at least one prisoner has died as a result of "cold cell":

In November 2002, a newly minted CIA case officer in charge of a secret prison just north of Kabul allegedly ordered guards to strip naked an uncooperative young Afghan detainee, chain him to the concrete floor and leave him there overnight without blankets, according to four U.S. government officials aware of the case.

The Afghan guards -- paid by the CIA and working under CIA supervision in an abandoned warehouse code-named the Salt Pit -- dragged their captive around on the concrete floor, bruising and scraping his skin, before putting him in his cell, two of the officials said.

As night fell, so, predictably, did the temperature.

By morning, the Afghan man had frozen to death....

The Afghan detainee had been captured in Pakistan along with a group of other Afghans. His connection to al Qaeda or the value of his intelligence was never established before he died. "He was probably associated with people who were associated with al Qaeda," one U.S. government official said.

We know that the administration authorized the CIA to use these techniques before the Detainee Treatment Act passed. I don't think the CIA is authorized to use them today, because of Hamdan's holding about Common Article 3 and the War Crimes Act. It's impossible to be completely certain of this, but I'm reasonably sure.

Here's what I don't know, and can't even make an educated guess about: Was the CIA was authorized to do these things to prisoners between the day the DTA was signed and the day the Supreme Court decided Hamdan?

The Office of Legal Counsel must have written a memo about whether waterboarding, "long time standing," forced hypothermia ,and similar techniques "shock the conscience" and thus violate the McCain amendment, but I have no idea what it says. Given the lack of case law on what "shocks the conscience" in interrogating terrorist suspects overseas, and the fact that one of the only cases on point is Arar v. Ashcroft, OLC could certainly have argued that these techniques do not shock the conscience when used on high level al Qaeda members in CIA prisons in order to prevent terrorist attacks and save innocent lives. Did the OLC make this argument? I don't know. I would guess that Dick Cheney and David Addington did, and they usually don't lose these fights, but that's sheer speculation. The fact is, the memo that answers these questions is classified. It is likely to remain classified for the foreseeable future.

You want to know who else doesn't have any idea what techniques the McCain Amendment actually forbids, in practice? The U.S. Senate. The 2007 Defense Appropriations Bill, S. 2766, includes the following provision:

SEC. 1061. REPORT ON CLARIFICATION OF PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT.

(a) FINDINGS.--Congress makes the following findings:

(1) It is critical that members of the Armed Forces have clear guidelines about the legality of interrogation techniques as they seek critical intelligence in the War on Terrorism.

(2) To avoid confusion, any determination made about the legality of various interrogation techniques must be consistent across the United States Government.

(3) Confusion continues about the permissibility of various interrogation techniques, even after the enactment of the Detainee Treatment Act of 2005 (title X of division A of Public Law 109-148).

(4) In testimony before the Senate and in written response to queries from the Senate, senior military commanders, Judge Advocates General of the Armed Forces, and various civilian officials of the Executive Branch have given incomplete or varying answers to questions on what constitutes cruel, inhuman, or degrading treatment.

(5) It is critical to clarify these matters in order to ensure that members of the Armed Forces do not receive unclear or misleading guidance on such matters.

(b) REPORT.--Not later than 90 days after the date of the enactment of this Act, the President shall submit to the congressional defense committees a report setting forth the coordinated and definitive legal opinion of the United States Government on whether each of the following interrogation techniques constitutes cruel, inhuman, or degrading treatment or punishment (as defined in section 1002(d) of the Detainee Treatment Act of 2006 (as defined in the Detainee Treatment Act of 2005 (119 Stat. 2740; 42 U.S.C. 2000dd(d)):

(1) Waterboarding, or any other technique using water, bags, or other devices or substances to induce a sensation of drowning or asphyxiation.

(2) Sleep deprivation, including, at a minimum, depriving a prisoner of sleep for 24 hours or more or permitting five or less hours of sleep per day over a period of three or more days.

(3) Stress positions, including the use of any technique in which a prisoner is placed or shackled in a painful or awkward position (including prolonged standing or crouching, shackling arms above the head for prolonged periods, or the use of shackles or handcuffs in a manner which causes pain due to the swelling of tissue over a prolonged period of time).

(4) The use of extreme temperatures as an aid to interrogation.

(5) The use of beatings, slapping, or violent shaking.

(6) The use of dogs as an aid to interrogation.

(7) The use of nakedness or other forms of sexual humiliation as an aid to interrogation.

This passed the Senate, but I don't think it has passed or will pass the House, so it will be up to the conference committee whether it is included in the final bill. The Bush administration opposes it (that's a PDF; see pages 2-3), arguing that it "would raise constitutional separation of powers concerns, and is also unncessary."

Waterboarding, prolonged stress positions, forced hypothermia, nakedness, dogs, sleep deprivation, beatings--these are techniques that CIA agents have described as "torture," techniques that have resulted in death for several prisoners* and physical or mental agony for God knows how many more. The Senate has no idea whether the Detainee Treatment Act allows or forbids these things. John McCain doesn't know, John Warner doesn't know, Lindsey Graham doesn't know. Until they figure it out, or Congress passes another law that explicitly bans these techniques, they have absolutely no business "clarifying" that the War Crimes Act's requirements are identical to the DTA's. They would "clarify" us right back into the same dark fog we were stuck in for five years before Hamdan.

*in addition to the Salt Pit hypothermia case, see the cases of  Manadel al-Jamadi and Abdul Jaleel, prisoner deaths involving the use of "stress positions" by CIA interrogators

Comments

[Katherine]

(After this the posts in this series will get a fair bit shorter and much lighter on the legalese, I promise.)

[John Lopresti]

We could call the Geneva Accords by a different nomenclature; how about the Geneva Process. The 150+ signatories could agree to toss the US out. Then the US could petition for a partially concurring status. Like Kyoto. The president is the signer of treaties; congress ratifies. The President also is the Decider.

[radish]

Well my conscience is sure as [deleted] shocked, and has been for years now. It's not shocking enough for Americans to be openly advocating that the government should torture people? We're not discussing an abstraction, but rather how stringently a particular activity should be regulated.

I'd be interested in hearing Hilzoy's take on this, but as far as I'm concerned the Supremes have been sensible in avoiding the the question of "conscience" here because it's just a polite fiction. And using polite fictions (like "privacy") in legal reasoning is a recipe for trouble. But the cat is out of the bag and it ain't going back in without somebody getting clawed. I think you should prepare yourself for the possibility that at some point -- probably after Bush leaves office but presumably still the Roberts court -- the Supremes will indeed have to decide the very question that Trager leaves open.

BTW nice cliffhanger at the end there...

[John Lopresti]

We got the end of the exclusionary rule for evidence. Corollary: inclusion of tainted evidence is ok when its source is a detainee. That sounds like parallelism for the current Supreme court's composition; but, I think what is worrying the administration here is Associate Justice Thomas. Until there is another Justice on the court less inclined to grasp parts of the 1st, 4th, and 5th amendements as those passages impact underprivileged or absolutely rightsless individuals who are merely humans, the administration will prescind from the 'conscience shock' test.

[trilobite]

Thank you hilzoy! As ever, a cogent summary of a horror.

Here's a question that nobody seems to be asking: it is now obvious that the Bush Administration is actively pushing a torture policy. They didn't just sort of stumble into it, they came to it deliberately and seem determined to push on in the face of adversity. So, why? Why spend so much political capital in support of such a useless goal?

I mean, is somebody telling them that it works? Because the consensus of experts is that torture does not produce reliable information. Perhaps they don't believe that, but why not?

And perhaps, given their usual focus on style over substance, they just see torture as another tool for "fixing" the intelligence in support of a predetermined policy goal? It does work for that; torture enough people and you do get some who will say whatever you want them to. So, is this about information control?

Or, and here I don my tin-foil hat... is this part of a general long-term effort to define deviance down? In other words, is the agenda to introduce torture in Gitmo today so that it can be sneaked into civilian American prisons bit by bit tomorrow? As policy, I mean, because we all know that many of the Gitmo techniques were actually pioneered in American prisons.

Bush and his fellow social elitists are on record for a number of propositions that amount to the idea that America needs a firmer hand, a government less shackled by untidy, inconvenient civil rights concerns. The authoritarian right has been busily demolishing the 4th and 6th Amendments for decades, and it lately started in on the 1st (with the personal attacks on journalists). Is the torture policy the conscious beginning of an attack on the 8th?

[Ugh]

Katherine - if you had a chance to ask SG Paul Clement some questions, what would they be?

[Nell]

I'm going to need a quiet time to look at your posts in sequence; I read the first few, then was away...

Have you already dealt with the issue of the role of the revised Army Field Manual for interrogation (still not final, I believe, and still unclear whether Pentagon will actually try the outrage of making some sections of it classified?).

semi-OT: Anyone reading this who has any idea when the Haynes nomination will be taken up again -- please say here, or comment at my blog, or email me. Thanks in advance.

[John Lopresti]

Nell, All I notice is the usual blank slate at Judiciary Committee, and business meetings agendas absent of any mention of further action on the Haynes matter; even Schumer's July 11 formal statement from the Haynes hearing then is posted only to the hearing website, not to the senator's own website. The Ralph Neas led organization likewise is silent on future prospects, but has a petition signed by 37,000 people to-date in opposition. I need to look at the clerks' websites for more definitive word, and, perhaps, may find the contact person at PFAW who likely has the current status information. During the past few nominations to Supreme Court justice, I found PFAW very responsive; you might try them directly yourself. Usually the reply is within a day, in my experience. You know this matter has to be within their scrutiny now, given the turbulence in the debate over what OLC should be doing as far as presenting a range of options.