October 15, 2005
Conference Committee that will consider and reconcile the Senate and
House defense appropriations bills is scheduled to meet this coming
week. The Senate bill contains the "McCain Amendment,"
which would prohibit all U.S. personnel from engaging in cruel, inhuman
or degrading treatment of detainees -- i.e., engaging in conduct that
would "shock the conscience" under Due Process Clause doctrine --
anywhere in the world.
It's increasingly clear that the strategy
of McCain's opponents -- the Vice President and his congressional
supporters -- will be to amend the McCain Amendment in the Conference
Committee so as to exempt the CIA
from the prohibition on cruel, inhuman and degrading treatment of
detainees. The Senate delegation to the Conference Committee presumably
will include three of the nine Republicans who voted against the McCain
Amendment -- Ted Stevens, Thad Cochran and Kit Bond. A recent
Congressional Quarterly article, reprinted here, reports Stevens -- who would "lead the Senate's conferees" -- as saying that "he can support McCain's language if it's augmented with guidance that enables certain classified interrogations to proceed under different terms."
"'I'm talking about people who aren't in uniform, may or may not be
citizens of the United States, but are working for us in very difficult
circumstances,' Stevens said. 'And sometimes interrogation and
intimidation is part of the system.'"
What this barely veiled
statement means is that Senator Stevens will support inclusion of the
McCain Amendment in the final bill only once it has been "augmented" to exempt the CIA from the prohibition on cruel, inhuman and degrading treatment.
(Stevens's reference to persons who "may not be citizens of the United
States, but are working for us" suggests that he also intends to
include a carve-out for foreign nationals acting as agents of the CIA,
such as the team of the CIA-sponsored Iraqi paramilitary squads code-named Scorpions.) If Stevens (read: Cheney) is successful in this endeavor, and if the Congress enacts the Amendment as so limited, it will be a major step backwards from where the law currently stands. This can't be overemphasized: If Stevens is successful at adding his seemingly innocuous "augment[ation]," it would make the law worse than it currently is.
Those wishing to learn all the details of why this is so are encouraged to read my previous posts
(particularly those of January 8, 12, 18 and 25, and May 11) about how
the Administration has construed numerous federal laws to make certain
that the CIA is permitted to engage in cruel, inhuman and degrading
treatment -- i.e., to engage in all forms of coercive interrogation
short of the small category of conduct denominated "torture." Here's a
quick synposis of why the Stevens "CIA carve-out" would make matters
worse, the basic gist of which is this: Although the McCain Amendment would helpfully clarify and reaffirm some of the law applicable to military
interrogations, it would not impose any substantive limitations on the
Armed Forces that are not already in current law. The McCain Amendment
would, however, emphatically reject the Administration's view that the CIA
may engage in cruel, inhuman and degrading treatment in certain
locations outside the U.S. -- a very significant development, but one
that the Stevens "augmentation" would eviscerate.
The McCain Amendment has two provisions:
The first provision is, by its terms, limited to detainees in the custody or effective control of the Department of Defense (or in a DoD facility).
It would provide that all such detainees could be subjected only to
those interrogation techniques listed in the Army Field Manual on
Intelligence Interrogation. This first provision would be a good and
helpful clarifying statute, because it would once again signal to
military personnel that there are
established and uniform rules for interrogation and that such rules can
be found in one place. But this first provision would not effectively
prohibit cruel, inhuman and degrading treatment of military detainees,
for two reasons. First, even though the current version of the Manual
has long been understood to incorporate the most protective rules
applicable to prisoners of war under the Third Geneva Convention, the Pentagon has recently concluded that the Manual actually authorizes
degrading and humiliating treatment, such as having female
interrogators physically seduce and taunt a Muslim detainee; forcing
him to wear a bra and placing a thong on his head during interrogation;
tying him to a leash, leading him around the room and forcing him to
perform a series of dog tricks; stripping him naked; and pouring water
on his head during interrogation 17 times. This interpretation of the
Manual is preposterous; but nothing in the McCain Amendment would stop
the Pentagon from adopting such a reading. Second, and more
importantly, the McCain Amendment does not itself establish any
substantive rules, because (as Senator McCain acknowledges)
the Pentagon would be able to amend the Army Field Manual anytime it
wishes. In fact, such an amendment is currently in the works, and the
soon-to-be amended Manual will contain a "classified Annex"
that apparently will permit coercive forms of interrogation of certain
categories of detainees that the Manual has previously long prohibited.
The second, and more important, provision of the McCain Amendment is not limited to detainees in DoD custody. It would provide 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."
provision would set a baseline prohibition for military interrogators
-- but it would not materially alter the law under which such military
personnel currently operate. The Uniform Code of Military Justice
(UCMJ) already prohibits the Armed Forces from engaging in cruelty and
maltreamtent, as well as assault and the threat of assault. Moreover,
the federal assault statute (18 U.S.C. 113) prohibits assault within
the special maritime and territorial jurisdiction of the United States;
and this prohibition applies even outside the special maritime and
territorial jurisdiction when committed by persons employed by or
accompanying the Armed Forces (by virtue of the Military
Extraterritorial Jurisdiction Act (MEJA)).
For approximately 14
months, from November 2002 until at least December 2003, the military
acted on the view that it was not bound by such statutes, presumably
based upon an OLC conclusion (in, e.g., a March 2003 memorandum of John
Yoo) that such laws unconstitutionally impinge on the President's
powers as Commander in Chief. Most of the atrocities within the
military that have come to light -- including at GTMO and in Abu Ghraib
-- occurred during this 14-month period. But it now appears that OLC rescinded its key advice in December 2003, and that subsequently the Administration has conceded that military personnel are bound by the UCMJ and these other federal statutes.
It's unlikely that the McCain Amendment would go further to restrain
the military than do these pre-existing statutes. And to the extent the
Administration would continue to assert the authority of a
Commander-in-Chief override, such a presidential override would also be
asserted vis-a-vis the McCain Amendment.
But where the McCain
Amendment truly would have bite is with respect to the CIA. That's
because the UCMJ, the federal assault statute and the MEJA do not
apply to the CIA's interrogation of detainees outside the U.S. and
outside the special maritime and territorial jurisdiction of the U.S.
-- i.e., at the "secret facilities" at which the CIA is detaining
certain suspects. Moreover, in a very important legal move,
the Department of Justice has determined that the CIA also is not bound
by the requirement of Article 16 of the Convention Against Torture that
the U.S. act to prevent acts of cruel, inhuman or degrading treatment
in any territory under U.S. jurisdiction -- because, in DOJ's (untenable but operative) view, Article 16 does not apply outisde the U.S.
this means, as a practical matter, is that the Administration has given
the CIA the green light to engage in all forms of coercive
interrogation short of "torture" proper.
-- That's why, in the infamous 2002 "Torture Memo," OLC's objective was only to inform the CIA of what the federal anti-torture statute prohibited,
and why OLC believed it could ignore all other legal constraints and
specifically distinguish "torture" from conduct that is "merely" cruel,
inhuman and degrading (DOJ having concluded that the CIA could employ
-- That's why, in his confirmation proceeedings, the Attorney General represented
that "some" techniques from among waterboarding, use of dogs to induce
stress, forced nudity, hooding, sensory deprivation, food and sleep
deprivation, exposure to extreme temperatures, a face or stomach slap,
the forcible injection of mood-altering drugs, mock executions, and
threatening to send detainees to countries where they would be
tortured, "might . . . be permissible in specific circumstances, if
appropriately limited, depending on the nature of the precise conduct
under consideration"; and why Judge Gonzaels could not ensure the
Senate that reported practices such as forced enemas, infliction of
cigarette burns, and binding detainees hand and foot and leaving them
in urine and feces for 18-24 hours, are legally off-limits.
-- That's why, just a few weeks ago, Tim Flanigan (then the nominee to be Deputy Attorney General) wrote to the Senate
that he was unwilling to say whether waterboarding -- "intentionally
inducing a detainee's perception of suffocation" -- is unlawful,
because that "depends on all of the relevant facts and circumstances."
-- That's why DOJ reportedly has
informed the CIA that it may, outside the U.S., lawfully use extreme
methods such as waterboarding, the threat of live burial, and
threatening rendition to sadistic interrogators in other nations -- and why the CIA reportedly has used at least some of these techniques in its interrogations.
-- And that's apparently why the CIA believed that it was entitled,
along with a small team of the CIA-sponsored Iraqi paramilitary squads
code-named Scorpions, to assault a detainee with fists, a club, a
length of rubber hose, and the handle of a sledgehammer. (Senator
Stevens apparently intends to exempt foreign agents of the U.S. such as
the Scorpions, from the McCain prohibition, too: they are, in his
words, persons who "may not be citizens of the United States, but are
working for us.")
The Congress has not, to this point, ever
specifically approved of the Administration's view that the CIA is
entitled to engage in cruel, inhuman and degrading treatment overseas
(outisde the special military and territorial jurisdiction). Of course,
that hasn't stopped the Administration from acting in accord with that
legal conclusion -- but it has meant that the legal landscape is somewhat uncertain, and such uncertainty (in John Yoo's words) "muddies the water,"
which in turn may make the CIA somewhat more reticent about engaging in
conduct that might, after all, be unlawful (and that might, therefore,
constitute war crimes).
But if Senator Stevens has his way,
and successfully exempts the CIA from the McCain Amendment's otherwise
unequivocal ban on cruel, inhuman and degrading treatment, the
Congress will for the first time have ratified the Administration's
view that such cruel, inhuman and degrading treatment is not uniformly
off-limits, and will have given a green light to the CIA to
engage in such conduct. Moreover, as explained above, that very
unfortunate result would not be offset by any meaningful improvement in
the law as it applies to the Armed Forces.
Accordingly, it is imperative that those
Senators and Representatives supporting the McCain Amendment must
resist any effort to "augment" the Amendment with a CIA carve-out.