From the New York Times:
September 8, 2006
The Legal Debate
Interrogation Methods Rejected by Military Win Bush’s Support
By ADAM LIPTAK
Many of the harsh interrogation techniques repudiated by the Pentagon on Wednesday would be made lawful by legislation put forward the same day by the Bush administration. And the courts would be forbidden from intervening.
The proposal is in the last 10 pages of an 86-page bill devoted mostly to military commissions, and it is a tangled mix of cross-references and pregnant omissions.
But legal experts say it adds up to an apparently unique interpretation of the Geneva Conventions, one that could allow C.I.A. operatives and others to use many of the very techniques disavowed by the Pentagon, including stress positions, sleep deprivation and extreme temperatures.
“It’s a Jekyll and Hyde routine,” Martin S. Lederman, who teaches constitutional law at Georgetown University, said of the administration’s dual approaches.
In effect, the administration is proposing to write into law a two-track system that has existed as a practical matter for some time.
So-called high-value detainees held by the C.I.A. have been subjected to tough interrogation in secret prisons around the world.
More run-of-the-mill prisoners held by the Defense Department have, for the most part, faced milder questioning, although human rights groups say there have been widespread abuses.
The new bill would continue to give the C.I.A. the substantial freedom it has long enjoyed, while the revisions to the Army Field Manual announced Wednesday would further restrict military interrogators.
The legislation would leave open the possibility that the military could revise its own standards to allow the harsher techniques.
John C. Yoo, a law professor at the University of California, Berkeley, and a former Justice Department official who helped develop the administration’s early legal response to the terrorist threat, said the bill would provide people on the front lines with important tools.
“When you’re fighting a new kind of war against an enemy we haven’t faced before,” Professor Yoo said, “our system needs to give flexibility to people to respond to those challenges.”
In June, in Hamdan v. Rumsfeld, the Supreme Court ruled that a provision of the Geneva Conventions concerning the humane treatment of prisoners applied to all aspects of the conflict with Al Qaeda. The new bill would keep the courts from that kind of meddling, Professor Yoo said.
“There is a rejection of what the court did in Hamdan,” he said, “which is to try to judicially enforce the Geneva Conventions, which no court had ever tried to do before.”
Indeed, the proposed legislation takes pains to try to ensure that the Supreme Court will not have a second bite at the apple. “The act makes clear,” it says in its introductory findings, “that the Geneva Conventions are not a source of judicially enforceable individual rights.”
Though lawsuits will almost certainly be filed challenging the bill should it become law, most legal experts said Congress probably had the power to restrict the courts’ jurisdiction in this way.
The proposed legislation would provide retroactive immunity from prosecution to government agents who used harsh methods after the Sept. 11 attacks. And, as President Bush suggested on Wednesday, it would ensure that those techniques remain lawful.
“As more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical,” Mr. Bush said. “And having a C.I.A. program for questioning terrorists will continue to be crucial to getting life-saving information.”
Mr. Bush said he had never authorized torture but indicated that aggressive interrogation techniques short of torture remained important tools in the administration’s efforts to combat terrorism.
“I cannot describe the specific methods used — I think you understand why,” he said. “If I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe and lawful and necessary.”
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.
Other senior administration officials, all of whom declined to speak on the record, said there was no intention to undercut the interrogation rules in the new Army Field Manual, which does not include some of the most extreme techniques used on some suspected terrorists in American custody.
The intent of the legislation, they said, is to prevent the prosecution of interrogators under amendments to the War Crimes Act that were passed in the 1990’s.
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.
Dean Koh said the administration’s new interpretation of the Geneva Conventions would further isolate the United States from the rest of the world.
“Making U.S. ratification of Common Article 3 narrower and more conditional than everyone else’s,” he said, “by its very nature suggests that we are not prepared to make the same commitment that every other nation has made.”
The bill proposed by the White House would also amend the War Crimes Act, which makes violations of Common Article 3 a felony. Those amendments are needed, the administration said, to provide guidance to American personnel.
The new legislation makes a list of nine “serious violations” of Common Article 3 federal crimes. The prohibited conduct includes torture, murder, rape, and the infliction of severe physical or mental pain. By implication, some legal experts said, the bill endorses the use of those interrogation techniques that are not mentioned.
The proposed legislation in any event represents a further retreat from international legal standards by an administration already hostile to them, some scholars said. “It’s strong evidence that this administration doesn’t accept international legal processes,’’ said Peter J. Spiro, a law professor at Temple University.
Neil A. Lewis contributed reporting from Washington.