Saturday, September 23, 2006

Saying it doesn't make it so

I've spent too long this afternoon going over the Senate's "compromise" on torture and detainee treatment [PDF]. Firstly, as the New York Times points out, this isn't a "compromise", but a surrender - the White House got everything they wanted, with the "rebel" Republican Senators gaining concessions only on the use of secret evidence. Secondly, the bill raises significant constitutional issues in assigning to the President "authority for the United States to interpret the meaning and application of the Geneva Conventions" (a judicial function), and in barring the use of any "foreign or international sources of law" in interpreting the US War Crimes Act (a violation of the separation of powers which, if permitted, would allow Congress to pass laws forbidding reliance on certain legal precedents. Roe vs Wade, or United States vs Nixon, say...) Thirdly, the bill has this lovely bit:

(2) PROHIBITION ON GRAVE BREACHES. The provisions in section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in Common Article 3 in the context of an armed conflict not of an international character.

Really? Let's look at that obligation, shall we?

Article 129

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article...

Article 130

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

The amendments to the War Crimes Act define many of these crimes, though in deliberately vague terms for inhuman treatment (and remember that the US government disagrees with the entire world in thinking that waterboarding - a medieval torture technique used by the Spanish Inquisition - is neither torture not cruel and inhumane) . But guess which one isn't included? That's right - the crime of denying a fair and regular trial. Which given that the rules for trials elsewhere in the bill (which allow hearsay evidence and coerced statements) constitute a clear breach of those standards, and of the "judicial guarantees... recognized as indispensable by civilized peoples" demanded by Common Article 3, would seem to be a significant and deliberate omission. Interestingly, the draft bill also completely ignores the war crime of ordering grave breaches to be committed (I wonder why that is?). The US government may claim that this bill "fully satisf[ies]" the US's obligations under international law - but saying it doesn't make it so.


Good for you, i/s, for sticking with this story.... Interesting post. Your pointing out of the logical problem with a given law pronouncing about itself that it fully satisfies such and such other provision is great (if one says it doesn't then one has ipso facto misinterpreted it! brilliant!).

I don't, however, quite see the first constitutional/sep.-of-powers point you mention: the Prez. gets to execute the treaty obligations and the new law and has to clarify what he's doing when he does so by writing new regulations... (these have to be published but not necessarily beforehand as I understand it, so there may be a problem there). That's just standard executive action as far as I can see, which then gets further controlled by Congress and by the judiciary ultimately with final review. The Bill allows for all of this.... so I don't see any sep-of-powers problem there.

Your second constit/sep-of-powers issue about Congress forbidding courts from appealing to alien laws may be more substantial... but it's hard to tell.

The "compromise" does seem to fail to grasp the nettle (many of the sexual humilations of Abu Ghraib would pass muster according to the NY Times' analysis and as I far as I can see they're right).... It's clear that, as Jeremy Waldron persuasively argued a few years ago, there's a bogus quest for precision at work here - it's 'in the service of a mentality that says “Give us a definition so we have something to work around, something to game, a determinate envelope to push”' and that McCain et al. have just been played/worn down. It's painful to watch the US damage itself like this...

Posted by Stephen Glaister : 9/24/2006 03:31:00 PM

Stephen: as I understand it, it goes a little further than that, in asserting that the judiciary should show deference to executive interpretations of what the Conventions mean (which, given their interpretation of "torture" - which excludes both waterboarding and, say, sticking a crazed starved rat in a cage three inches from your nose and threatening to open the gate and let it gnaw your eyes out - is a nightmare waiting to happen).

The second issue has far wider constitutional implications, as well as serious practical consequences for war crimes cases. For a start, as David Luban points out, it would remove the Nuremberg Principles from consideration, which both poses significant problems for prosecutions of non-Americans under the War Crimes Act (and the way some of the amendments are phrased, it looks like that's what they want to do), and of course allow the "only following orders" defence.

The compromise is clearly aimed at allowing abuse to continue under cover of law, and yes, it is very painful to see the US destroy itself like this. The "home of freedom" is about to legalise and institutionalise torture, sadism and abuse. Things will never be the same after that sort of Fall.

Posted by Idiot/Savant : 9/24/2006 05:31:00 PM