September 08, 2006

Has Waterboarding Been Banned?

First, from the NYT:

Common Article 3 of the Geneva Conventions bars, among other things, “outrages upon personal dignity, in particular, humiliating and degrading treatment.” The administration says that language is too vague.

That is nonsense, said Harold Hongju Koh, the dean of Yale Law School and a State Department official in the Clinton administration. “Outrages upon personal dignity is something like Abu Ghraib or parading our soldiers in Vietnam before the television cameras,” he said. “Unconstitutionally vague means you don’t know it when you see it.”

But the new legislation would interpret “outrages upon personal dignity” relatively narrowly, adopting a standard enacted last year in an amendment to the Detainee Treatment Act proposed by Senator John McCain, Republican of Arizona. The amendment prohibits “cruel, inhuman or degrading treatment or punishment” and refers indirectly to an American constitutional standard that prohibits conduct which “shocks the conscience.”

There is substantial room for interpretation, legal experts said, between Common Article 3’s strict prohibition of, for instance, humiliating treatment and the McCain amendment’s ban only on conduct that “shocks the conscience.”

The proposed legislation, said Peter S. Margulies, a law professor at Roger Williams University, “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.”

The net effect of the new legislation in the interrogation context, Professor Yoo said, is to allow the C.I.A. flexibility of the sort that the revisions to the Army Field Manual have denied to the Pentagon. The bill lets the C.I.A. “operate with a freer hand” than the Defense Department “in that space between the Army Field Manual and the McCain amendment,” he said.

Could we now be arguing between tactics that fall somewhere between Article 3 and the McCain Amendment? I'm probably one of the last persons to believe anything John Yoo has to say on this matter, but I note that Ron Suskind in a recent interview states: "Death threats, waterboarding, profound deprivation issues, heat, cold, denial of medical attention -- those are now abandoned."

While my strong preference is for complete fidelity to Geneva's Article 3 requirements, pursuant to best Army Field Manual practice and norms, it is at least progress, if true, that tactics such as death threats, waterboarding and induced hypothermia are being abandoned. Progress, mind you, not an all clear, not by a long shot. Not least as we are not being told what tactics are still being employed, as far as I know, and they could well constitute torture (particularly given the Administration's duplicitious and untrustworthy track record on the entire gamut of detainee treatment and interrogation tactics issues over the past half decade). In addition, we have not seen any of the internal Administration legal memoranda making the case why tactics to be used going forward do not rise to torture as per the Torture Convention. Finally, don't miss this snippet from the NYT piece:

A senior intelligence official said that 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.

The official, who spoke on the condition of anonymity, would not discuss the techniques the agency had used or was prepared to use.

Bottom line, at least as of tonight: I've been burned too many times to believe that this Administration has truly banned any and all tactics that constitute torture on enemy combatants in CIA custody, and so I'm not convinced yet we are are just dealing with penumbras as between Article 3 and the McCain Amendment, as Yoo would spin it. On top of this, I am a firm believer that strict compliance with best practices under Article 3 is the best way forward regardless, and even if I could be persuaded otherwise, I'm not at all comfortable with what this Administration would view as not 'shocking the conscience' regardless-- and thus permissible under their reading of the McCain Amendment requirements--certainly given previous Administration lawyering on such matters that can only be described as unprofessional and irresponsible in the extreme.

Note this is not about knee-jerk detainee rights absolutism, as some would have it. Ensuring torture is totally banned under American law is a touchstone issue that defines our very civilization, to include its continued embrace of Englightenment values, a belief in progress in the face of adversity, and ensuring that our most odious enemies are not successful in having us sully our human rights leadership, one so hard earned through the Cold War. In short, we must all remain seized and vigilant with regard to the great import of regaining our moral leadership on the world stage with respect to these foundational issues.

MORE: Marty Lederman has a related post here.

Posted by Gregory at September 8, 2006 05:51 AM