There's a certain irony at the heart of the Administration's draft bill on military commissions, the Geneva Conventions, and war crimes.
Two centerpieces of that bill are (i) a very detailed list of 27 categories of offenses (mostly violations of the laws of war) that could be tried by the Administration's proposed military commissions; and (ii) another detailed list of nine categories of "war crimes" that could be tried in our civilian criminal courts under a revised War Crimes Act. These two lists catalogue virtually every war-related crime imaginable -- from attacking civilians, pillaging, denying quarter, using posion, using human shields, trechery, and "conspiracy," to biological experiments, rape and hostage-taking.
There is a conspicuous omission, however: It appears that most or all of the CIA's "alternative" interrogation techniques -- such as hypothermia, stress positions, "Long Time Standing," prolonged sleep deprivation, threats to harm family members, perhaps even waterboarding -- are not covered on either list.
Under current law, such techniques could almost certainly be prosecuted either as violations of the laws of war, by a court martial or by a properly constituted military commission, or as "war crimes" in a civilian criminal court, under the War Crimes Act, because they violate the prohibition on "cruel treatment" in Common Article 3 of the Geneva Conventions. But under the Administration's draft bill, such conduct apparently could no longer be prosecuted under either of these two legal systems for handling war-related crimes. Therefore, if Al Qaeda today subjected captured U.S. personnel to the horrors that Jack Balkin hypothesizes here, we could prosecute such conduct; yet it appears that such cruel treatment would be outside the law under the Administration's proposed legislation. (Possible caveat: Such conduct might be prosecutable as "spying" under paragraph 26 of the list of military-commission offenses, not because of the techniques used, but because that provision would make criminal any attempts to collect intelligence against the U.S. "by clandestine means.")
What explains this odd proposed liberalization of a single category of war crimes?
Answer: Common Article 3, Hamdan and the CIA.
As this story in the New York Times today explains, the infamous OLC "torture memo" in August 2002 gave a green light to the CIA to engage in what another DOJ memo (not yet disclosed) apparently identified as 20 "alternative" interrogation techniques. That August 1, 2002 OLC memo, however, dealt only with the federal torture statute, which is hardly the most restrictive legal constraint with respect to such matters. Even if that memo had been correct about the definition of torture and possible legal justifications for torture (it wasn't), so what? After all, there were numerous other legal constraints on interrogation conduct that are even more restrictive than the torture statute. But Administration lawyers had also carefully provided justifications -- some valid, others less so -- for concluding that the CIA was not bound by any of those other legal restrictions, either, when interrogating suspected Al Qaeda operatives overseas. (Click on the previous link for some of the details.)
As I tried to explain in some detail 15 months ago, the most important legal move of all -- the one that made all the others possible -- was the President's determination in February 2002 that Common Article 3 of the Geneva Conventions -- which categorically prohibits all "cruel treatment," as well as torture and other conduct, with respect to persons in our custody in certain armed conflicts -- did not apply to the conflict with Al Qaeda.
Enter Hamdan. Within minutes after the Court's decision on June 29th, it was evident that the most important news was not the specific holding that the President's military commissions violated federal statutes (important as that was), but instead the momentous holding that Common Article 3 applies to the conflict with Al Qaeda as a matter of treaty interpretation.
As Dafna Linzer and Glenn Kessler explain in the Washington Post today, this holding came as a bombshell to the CIA and the Administration, in that it "in effect declar[ed] the CIA's program illegal." Hamdan "forced our hand," Dan Bartlett is quoted as acknowledging. Apparently the White House "had made no contingency plans for [such] a loss and was stunned by the decision."
Stunned . . . but not yet quite ready to concede defeat. After all, what difference does a Supreme Court decision make when you have the power to cut off all judicial review?
Section 6(a) of the Administration's draft legislation would declare that compliance with the McCain Amendment would "satisfy" the U.S.'s obligations under Common Article 3. Perhaps such a legal conclusion might be reasonable if the Administration were construing the McCain Amendment the way Senator McCain intended it. But apparently they are not, instead reading the vague "shocks the conscience" standard of the due process clause (which the McCain Amendment incorporates) to permit at least some of the "alternative" CIA techniques. (For how they might reach such a conclusion, see the discussion of "Myth No. 6," here.)
The Supreme Court, however, would not be bound by the statutory declaration that such techniques comply with Common Article 3. The Court could -- and probably would -- reasonably conclude that, for example, hypothermia and stress positions are, in fact, "cruel treatment." This prospect obviously is a problem for the Administration. And so, in section 6(b), the legislation would purport to prohibit all courts from ever considering any questions relating to the interpretation or enforcement of the Geneva Conventions.
That still would not do the trick, because there's also the War Crimes Act, which criminalizes all violations of Common Article 3, and it's surely conceivable that a future Attorney General might conclude that techniques such as hypothermia and Long Time Standing are, indeed, "cruel treatment" and thus war crimes. Therefore, in section 7 of the bill, the Administration would carefully exclude most or all of the CIA's alternative techniques from the scope of the War Crimes Act.
Thus, as Adam Liptak reports in today's New York Times, and as a "senior intelligence official" confirms, "the new legislation, if enacted, would make it clear that the techniques used by the C.I.A. on senior Qaeda members who had been held abroad in secret sites would not be prohibited and that interrogators who engaged in those practices both in the past and in the future would not face prosecution."
(Some of Liptak's sources suggest that the object of the legislation "seems to be trying to surgically remove from our compliance with Geneva the section of Common Article 3 that deals with humiliating and degrading treatment." As I've tried to explain, that's not quite right -- or it's not the important part of the puzzle, anyway. The central point is not that the CIA techniques in question may be "humiliating and degrading" -- they might be sometimes, but not always, depending on how that clause is interpreted -- but instead that the techniques in question constitute "cruel treatment" under Common Article 3.)
As John Yoo states in the Liptak story, the net effect of the new legislation in the interrogation context is to allow the CIA to "operate with a freer hand" than the Defense Department "in that space between the Army Field Manual and the McCain amendment." (The bill would also allow the military itself to do the same -- but that would presumably require a controversial amendment of the Field Manual.)
As Professor Yoo notes, this would, in effect, be a "rejection of what the Court did in Hamdan." According to Linzer and Kessler, this part of the Administration's strategy is a "reward" to Vice President Cheney, who would otherwise have "essentially lost out on a program [the CIA black sites program] he had fought to preserve."
The final line in that story, however, inserts a note of ambiguity. "'It's true the program could continue, but it will never occur in the same manner that it operated before,' said one influential official."
Perhaps, as Dana Priest's story yesterday suggested, this means that not all of the CIA techniques would be made lawful by the proposed bill. Perhaps even the Administration concedes that some of those techniques "shock the conscience," and thus would violate the McCain Amendment. It's impossible to tell from the current draft language. (Perhaps the ambiguity resides in the bill's new war crimes category caleld "Cruel or Inhuman Treatment." For the most part, that crime is defined only to prohibit torture as it is (narrowly) defined under federal law. But it also includes an odd reference to "severe physical abuse" (page 80, line 23) as an example of what constitutes severe physical pain. I have no idea what that new phrase is supposed to mean, whether it makes this category broader than the "torture" described in subparagraph (1), and/or whether it would best be read to incorporate some of the "alternative" CIA techniques.)
The Administration claims a need to provide clarity in the War Crimes Act; but they have, if anything, made it much more ambiguous . . . which might, after all, be the whole point of the exercise, because in ambiguity lies the seeds of loopholes to be exploited by creative lawyers.