Getting with "The Program": Clarity Through Obfuscation

by Marty Lederman

Then there are those days when the President of the United States and "senior administration officials" make a humble blogger's life easy, by confirming everything that up until now I could only glean from supposition and reading the runes of carefully phrased legalisms.

In his impassioned press conference yesterday, the President acknowledged that the Hamdan decision, by clarifying that Common Article 3 applies to the conflict with Al Qaeda, had rendered the CIA's "program" of "alternative" interrogation techniques unlawful, and that unless the Administration's bill is enacted, "the program" cannot lawfully continue:

This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article 3 of the Geneva Convention. [T]he bottom line is . . . that this program won't go forward if there's vague standards applied like those in Common Article 3 of the Geneva Convention. . . . You can't ask a young professional on the front line of protecting this country to violate law. Now, I know they say they're not going to prosecute them. Think about that, you know. "Go ahead and violate it, we won't prosecute you." These people aren't going to do that.

And in a story today, Jeff Smith of the Washington Post quotes one "well-informed source" as saying that the techniques "include prolonged sleep deprivation and forced standing or other stress positions," and that the techniques "match the techniques used by the agency in the past," which I describe here.

Smith identifies "a notable exception: The CIA no longer seeks to use a notorious technique called 'waterboarding,' which is meant to simulate drowning." Note the phrasing: Merely that the CIA no longer "seeks to use" waterboarding. Not that waterboarding would be unlawful under the Administration bill. To the contrary, "[p]rivately, the administration has concluded that [enactment of the Bush proposal] would allow the CIA to keep using virtually all the interrogation methods it has employed for the past five years, the officials said." So perhaps, if Congress were to enact the Administration bill, even waterboarding would be back on the table, should the CIA once again "seek to use it."

The referennce in the President's remarks to the so-called "vague standards" of Common Article 3 was a recurrent theme in his statement. No fewer than 16 times, he asserted that his proposal would provide "clear" or "definite" interrogation standards, or would bring "clarity" to the law.

As readers of this blog know, this is, of course, a joke -- or as Jeff Smith puts it, an "irony" of the Administration's position. Smith is exactly right in this respect: "The administration says its intent is to define the explicit meaning of Common Article 3 so that CIA officers know exactly what they can do. But the senior official who addressed the legal issue yesterday said the standard the administration prefers is 'context-sensitive,' a phrase that suggests an endlessly shifting application of the rules.

"The Administration bill would make the McCain Amendment, which incorporates the Due Process Clause's "shocks the conscience" test, the touchstone for legality. As I suspected (see the discussion of "Myth No. 6" here, and Point No. 2, here), the Administration has construed that test to allow the use of the CIA enhanced techniques -- persumably because their consciences just aren't that shockable. (Whatever happened to "shock and awe"?) Smith reports that an "unpublicized memo to the CIA from the Justice Department's Office of Legal Counsel" names "the precise interrogation methods the department believed to be sanctioned by [the McCain Amendment]." (Shouldn't that memo be made available to Congress, so that the legislature can see exactly what it's being asked to authorize?)

Not surprisingly, this comes as a surprise to Senator McCain himself: "A retired intelligence professional who said he has discussed the matter at length with colleagues said the predominant view at the agency is that McCain -- who made clear in congressional debate last year that he disapproved of what the CIA was doing -- was surprised to learn later that the [McCain Amendment] did not put a stop to it." Senator McCain perhaps underestimated the ingenuity of the Vice President and his attorneys. As the Vice President explained, what "shocks the conscience" is "in the eye of the beholder." And evidently, these guys "behold" hypothermia and waterboarding (at least on paper), and -- unlike Senator McCain, who has actually beheld such horrors -- they are not shocked.

In the hands of the Administration, then, the McCain Amendment would be "a 'flexible' standard,'" which would, according to officials, "allow interrogators to weigh how urgently they felt they needed to extract information against the harshness of their techniques, instead of following rigid guidelines."

In other words, the Administration's mantra that its bill would bring "clarity" is exactly backwards. Under the current law -- Common Article 3's categorical prohibition on "cruel treatment and torture" -- the CIA techniques are plainly unlawful: That's why the "program" has been stopped.

(The notion that this standard is too vague for government work comes just a bit too late in the day. That standard has been binding on the United States and virtually every other nation on earth for more than 50 years. The Congress overwhelmingly attached criminal sanctions for its violation in 1997. These felony sanctions can be applied to any government officials anywhere in the world; and yet, as far as I know, during consideration of the 1997 amendment, and for the past nine years, there was until now not so much as a peep from anyone in any of the three branches of government, or in the literature, that there were any vagueness concerns with the incorporation of Common Article 3 into the WCA. In addition, for more than 50 years the U.S. armed forces have been operating under the Uniform Code of Military Justice, which similarly makes it a crime for a member of the armed forces to make threats or to engage in "cruelty toward, or oppression or maltreatment of, any person subject to his orders.")

But under the legal standard the Administration bill would substitute for this age-old proscription, "rigid guidelines" would be replaced with a context-dependent "flexible" standard. Jeff Smith gently calls this an "irony." As he writes: "The official did not try to explain how embracing such an inherently flexible standard would actually create clarity, the watchword of the administration's public campaign for its version of the bill."

For many decades, the U.S. armed forces very comfortably and effectively worked under broadly stated prohibitions (see above) and under very carefully prescribed rules for interrogation designed to comply with such legal limits. It was only in 2002, when the President declared such rules "flexible" and "context-dependent," that all hell broke loose at GTMO and in Iraq and Afghanistan.

If the President sincerely wanted "clarity" and "definite standards" for the CIA as well, as he professes, that would be quite a simple thing to accomplish: Akin to what the Pentagon has recently done in the Army Field Manual, Congress could simply specify in the statute that waterboarding, hypothermia, sleep deprivation, stress positions, and threats are categorically forbidden. What are the odds the White House would accede to such "clarity"?