Sunday, September 17, 2006

Interrogation Techniques : S.3861 vs. S.3901

Sept 22
Negotiated proposal discussed at bottom of post

Andy McCarthy's Hamdan and the Sunset of Sovereignty suggests that veering into a debate on interrogation techniques for military conflict, in the context of beating terrorism, has some profound unintended consequences. I hadn't considered the issue from the same perspective that he provides - but I agree the debate is on the wrong track.

A good analysis by Bobby Chesney at READ IT. That's an order!

And at Kenneth Anderson's Law of War and Just War Theory Blog, a more detailed fleshing out of ...

A question that is nagging at me involves the definition of a "protected person" under the Geneva Conventions. The history and development of law inclines me to the belief that common pirates and terrorists, who operate outside of the open sanction of a recognized government and have no inclination of forming a nation-state, are completely outside of the scope of protection afforded by the Geneva Conventions.

... with follow-up comments at Did Hamdan actually resolve the status of the US-AQ conflict?. this has developed into an exceptional discussion. Read it, too.

Senator Specter's floor speech of 4:30 PM or so, Wednesday, September 20, referred to the administration's bill as S.3886 - Terrorist Tracking, Identification, and Prosecution Act of 2006, rather than the S.3861 that forms the basis for the below discussion. The discussion stands because S.3886 has exactly the same references (to 18 USC 2430(2) and 18 USC 113) that S.3861 does. At a quick glance, the only difference is that S.3886 has the language under a "Subchapter VII : SEC. 107. WAR CRIMES ACT AMENDMENT," where S.3861 language is under "Sec. 7 WAR CRIMES ACT AMENDMENT."

S.3886 is comprehensive, in that it also provides revised statutory language for FISA, that is, language to support the administration's Terrorist Surveillance Program.

The administration bills as of September 22 (S.3929 and S.3930) contain the same language, but in a rearranged form.


Most of the below expounds on the debate over supporting language for common Article 3 of the Geneva Conventions. It concludes that the administration is engaging in obfuscation by saying "the McCain language is enough" on one hand, and "the McCain language isn't enough" on the other - that last position by rejecting the bill voted out with the help of Warner/McCain/Goober/Collins. Both bills have the McCain language, and if that's enough, well, it's enough.

But I think the administration is making an error on a much more profound level, by appearing to concede that terrorist suspects are per se entitled to common Article 3 protection. In fact, some people are not entitled to the protection of common Article 3. The Geneva Conventions say "1. A mercenary shall not have the right to be a combatant or a prisoner of war," which is a concrete example of a class of person not entitled to common Article 3 protection.

And if we're talking about dealing with those people who engage in terrorism, then better to make it abundantly clear that we don't treat known terrorists under the Geneva protocol, and neither should any other government. Adjusting Article 3 so that it's suitable for dealing with the worst of the worst exposes lawful combatants and POWs to the same treatment. Whatever the interpretation of common Article 3 becomes, it "swings both ways."

It's awful to be caught on the wrong field for argument - and I blame the administration for advocating the approach of "S.3861 vs. S.3901," without explaining (if it believes so) that known terrorists don't deserve, and won't get that protection. I also blame the Senate, the House and the legal scholars - all of whom seem to have lost a view of history.

As for being stuck with the Supreme Court, that "co-equal" argument goes all directions. The President is not duty-bound to enforce an error by the Supreme Court. Sure, he would have to explain how he reaches the conclusion that applying common Article 3 to known terrorists is not what the Geneva Conventions expect - but he's not doing that. He just says "it's the Court's decision, and I'll abide by it." Of course he is free to concede the point, but I question his judgement and wisdom in doing so.

Perhaps it was inevitable that this Supreme Court decision would wander into Article 3 rights, as Mr. Hamdan isn't a known terrorist to the same degree that Osama bin Laden is. But I marvel at the idiocy of arguing that common Article 3 doesn't apply "because the conflict is not (in the words of common Article 3) 'an armed conflict not of an international character'." How about arguing instead that common Article 3 doesn't apply to THIS detainee, because of the nature of the detainee?

As you read the below, bear in mind that some detainees are known terrorists, others we have a strong suspicion, and others we have a weak suspicion. Should all people be subjected to the same rules of handling? I think not, and the authors and signatories to the Geneva Conventions agree. Why then is the debate framed as "how should we treat all detainees?" Maybe (I hope not) it's because the administration wants the power to treat all detainees the same way.


Where the question is "should common Article 3 apply?", I conclude that it shouldn't. But the argument isn't over that question. It is about crafting US statutory language to reflect the application of common Article 3. As I say later, "I didn't pick THIS argument, I'm just trying to follow it intelligently."

The major focus of today's Sunday shout shows was the "break" between President Bush and several prominent Republicans on the matter of interrogation methods. By interrogation methods, I mean to draw the reader to the methods used to elicit information from detainees. What is the boundary between permissible and impermissible? President Bush and Senators Warner, McCain and Graham have proposed answers, and neither side accepts the other's answer.

Of course, an argument can be made that there is no such thing as an impermissible interrogation technique when it comes to terrorists, but so far no official has advocated that position.

Certainly, the terrorists respect no boundary between permissible and impermissible, as they target pure innocents for death, dismemberment, terror and torture. One argument is that if our moral standard amounts to "turnabout is fair play," then the legal rhetoric and debate amounts to subterfuge. The terrorists follow no law, and if we are to use that "technique" against them, then we follow no law either. We might say we do, but (goes the argument) the reality would bear out differently. The moral calculus here operates outside of the law.

There is a counterargument to the above, "moral calculus here operates outside of the law."

A question that is nagging at me involves the definition of a "protected person" under the Geneva Conventions. The history and development of law inclines me to the belief that common pirates and terrorists, who operate outside of the open sanction of a recognized government and have no inclination of forming a nation-state, are completely outside of the scope of protection afforded by the Geneva Conventions.

This belief is reflected in commentary by Blackstone ...

William Blackstone, Commentaries 1:249--51

III. Upon the same principle the king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power: and this right is given up not only by individuals, but even by the intire body of people, that are under the dominion of a sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. Whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. Such unauthorized voluntiers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law; hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones sunt.

... and is fleshed out in more modern detail in The Dread Pirate Bin Laden - How thinking of terrorists as pirates can help win the war on terror, by Douglas R. Burgess Jr.

But I am a babe in the woods when it comes to the details of the Geneva Conventions, and prefer to obtain source material that supports or that demolishes my belief -- that countries may treat pirates and terrorists any way they please without risking a charge of being in violation of the Geneva Conventions. My current reading includes the following:

Commentary to common Article 3 of Geneva Conventions

Convention I - Armed Forces on the Battlefield
Convention II - Armed Forces at Sea
Convention III - Prisoners of War
Convention IV - Civilians

See also Commentary to common Article 2 of Convention IV.

If terrorists and pirates are expected to be outside of the scope of protection afforded by common Article 3 of the Geneva Conventions, I'd much prefer to have THAT argument in the open, than have a surrogate argument between the relative merits of S.3861 and S.3901.

In fact, I see nothing good coming from an attempt (and no reason) to transform or apply the rules for war between nation-states into limits on conduct for removing the scourge of stateless terrorists and pirates from the face of the earth.

The issue would change from "what is the definition of permissible conduct under common Article 3?" into "how does a nation-state know that the person it does not extend common Article 3 protection to, is in fact not entitled to its protection?"

Is it possible that the Senate and administration are having the wrong argument on a subject this serious? You better believe it. Did the Supreme Court in Hamdan really insist that ALL people of the earth are entitled to the protection of common Article 3? Not really, but it's analysis ignored the possibility of pirate-like entities. Are we completely invested in the cause "we do not torture?" Or would it be reasonable to say [and act], "call it what you want, but stateless terrorists get no quarter?"

What exactly is the "GOP Split"?

As interesting as they are, it's time to cast those questions aside. The circumstances where common Article 3 is held to be inapplicable are irrelevant to a S.3861 v. S.3901 comparison.

The analysis below compares the legal boundary between permissible and impermissible treatment of a detainee on the assumption that common Article 3 applies (or wherever common Article 3 applies), as expressed in competing proposals for legislation. One proposal being offered by the administration, the other by "maverick GOP Senators." They picked THIS argument, I'm just trying to follow it intelligently.

My analysis of the differences between (for shorthand) the administration's point of view and McCain's point of view began with a look at the language in the competing legislative proposals. One assertion that caught my attention was that the administration's proposal tracks the language of McCain's Detainee Treatment Act. That's as good a place as any to start.

WH Press Release - September 15, 2006

However, The President's Proposed Legislation Clarifies Common Article 3 By Applying The McCain Amendment Prohibiting Torture To The War On Terror. The proposal clarifies our obligations under Common Article 3 by reference to the U.S. Constitutional standard already adopted in the McCain Amendment and in the U.S. Reservation to the Convention Against Torture. The McCain Amendment - which is part of the Detainee Treatment Act (DTA) - prohibits "cruel, inhuman, or degrading treatment or punishment," as defined by reference to the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution, for all detainees held by the United States, regardless of nationality or geographic location.

A direct assertion, and easily shown to be true by reading the relevant clause in the Senate bill that the administration favors, S. 3861 - Bringing Terrorists to Justice Act of 2006


(a) IN GENERAL.--Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in Section 1003 of the Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119 Stat. 2739; 42 U.S.C. 2000dd) shall fully satisfy United States obligations with respect to the standards for detention and treatment established by section 1 of common Article 3 of the Geneva Conventions, with the exception of the obligations imposed by subsections 1 (b) and 1 (d) of such Article.

But I must say, after "reading on," that I find the press release to be far less than full disclosure. Again, I'm not complaining. I expect all sides to advocate powerfully for the outcome they desire. At any rate, my impression that this release is more self-serving than illuminating is in part because Sections 6 and 7 of S. 3861 - Bringing Terrorists to Justice Act of 2006 approach the inquiry of limits on detainee interrogation treatment from opposite directions.

Section 6 of the administration's proposal says that meeting Section 1003 of the DTA fully satisfies United States obligations with respect to the relevant parts of common Article 3 of the Geneva Conventions. Well, providing all detainees with swimming pools, servants and gourmet eating fare would also fully satisfy United States obligations with respect to the standards for detention and treatment. But the point of interest is to find the boundary that separates the sort of conduct that doesn't satisfy common Article 3 from the sort of treatment that does satisfy it.

To be fair, Section 6 does in fact provide a means of defining the boundary of "too far." That boundary is found in the language of the White House press release, which mirrors the language in Section 1003 of the DTA, which mirrors the terms of US agreement to abide by various international treaties.


(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined- In this section, the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

Okay - Section 6 says no cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments. Is that clarity enough? To read the press release, one would be lead to that impression. The press release says "The President's Proposed Legislation Clarifies Common Article 3 By Applying The McCain Amendment ..."

My suspicion is that if Congress passed a statute with only the equivalent of the administration's Section 6 (we can't engage in interrogations techniques that would violate the Constitution if applied to citizens), the administration would object, "Section 6 isn't specific enough." Or said another way, I think that the administration would object if there was no "Section 7 of S.3861" (or equivalent) in the proposed legislation. In fact, the administration HAS objected to S.3901, on the grounds that it lacks the requisite specificity that our interrogation professionals deserve. It may also object on the grounds that "Constitutional" interrogation techniques aren't effective.

Section 7 of the administration's proposed legislation is the part that clarifies the barrier between permissible and impermissible interrogation techniques. It is what clarifies the boundary between "lawful" and "unlawful" in a way that removes the uncertainty that the administration says is keeping it from continuing the CIA interrogations under the same "rules" that were successful in getting information in the past. Section 7 is intended to clarify the meaning of "outrages upon human dignity." Section 7 provides the "clarity in the law" (or at least an example of clarity) that the administration says it needs.

Pardon the long blockquote, but it's really the only way to accurately display exactly what the proposed legislation says.


Section 2441 of title 18, United States Code is amended by replacing subsection (c)(3) with the following:

Oops, hang on just a second. This is a good time to introduce the language of ...

18 USC § 2441. War crimes

(c) Definition.-- As used in this section the term "war crime" means any conduct--
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Most of that is superfluous to the analysis, but it's worth seeing the full definition of "war crime," in order to see what is proposed to be substituted for section (c)(3). The administration's objection to (c)(3), as it stands, is that the language of Geneva common Article 3 is too vague and our interrogators are thereby opened up to being charged with war crimes. The administration's proposed replacement to (c)(3) (in Section 7 of S.3861) continues:

`(3) which constitutes any of the following serious violations of common Article 3 of the international conventions signed at Geneva 12 August 1949, when committed in the context of and in association with an armed conflict not of an international character--

`(A) TORTURE- Any person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be guilty of a violation of this subsection. `Severe mental pain or suffering' has the meaning provided in 18 U.S.C. 2340(2).

This is another logical place to break, but only to note the reference to statute. 18 USC 2340(2) defines "severe mental pain or suffering," and later in the proposed statute is a reference to 18 USC 113(b)(2), which points to 18 USC 1365 for a definition of "serious bodily injury." These statutes contain the specificity that the administration is seeking, and are the basis for the assertion that the administration is asking for permission to conduct interrogation in conformity with existing US law. But before reading the definitions of "severe mental pain and suffering" and "serious bodily injury," and in the interest of seeing the administration's proposal, Section 7 of S.3861, with less interruption, here are all of the additional violations of common Article 3 that the administration proposes to constitute war crimes ...

`(B) CRUEL OR INHUMAN TREATMENT- Any person who commits, or conspires or attempts to commit, an act intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including severe physical abuse, upon another person within his custody or physical control shall be guilty of a violation of this subsection. `Severe mental pain or suffering' has the meaning provided in 18 U.S.C. 2340(2).

`(D) MURDER- ...

`(F) INTENTIONALLY CAUSING GREAT SUFFERING OR SERIOUS INJURY- Any person who intentionally causes, or conspires or attempts to cause, serious, bodily injury to one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. `Serious bodily injury' has the meaning provided in 18 U.S.C. 113(b)(2).

`(G) RAPE- ...

One more section of proposed law to present before looking at 18 USC 2430 and 18 USC 113, and it's also worth noting that the "interrogation/war crimes" part of the competing legislative proposals is only one part. The proposals also cover the creation of and rules for conducting trials.


This Act shall take effect on the date of the enactment of this Act and shall apply retroactively, including to any aspect of the detention, treatment, or trial of any person detained at any time since September 11, 2001, and to any claim or cause of action pending on or after the date of the enactment of this Act.

That's a whole different argument, and you'll find no shortage of writing that plays off this "retroactivity" clause. For this analysis, the point is that the specificity in interrogation techniques sought by the administration is embodied in the definition of "severe mental pain or suffering" in 18 USC 2340(2) and the definition of "serious bodily injury" derived by referring to 18 USC 1365, being pointed to from 18 USC 113(b)(2).

The specificity desired by the administration is obtained by defining acceptable treatment as inflicting "bodily injury" up to the limit of "serious" expressed in 18 USC 1365, and "mental pain or suffering" up to the limit of "severe" as expressed in 18 USC 2340(2).

18 USC § 113. Assaults within maritime and territorial jurisdiction

... (b) As used in this subsection--
... (2) the term "serious bodily injury" has the meaning given that term in section 1365 of this title.


18 USC § 1365. Tampering with consumer products

... (3) the term "serious bodily injury" means bodily injury which involves--
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty


18 USC § 2340. Definitions

As used in this chapter--
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

As noted in my opening, my objective is to understand the argument by first understanding the positions advocated by opposing sides. Not by sound bite, not by news report, but starting with the words they offer for legislation. On this subject, politicians will try to gloss over their policy differences by saying "we all want the same thing," I aim to focus (and maybe exaggerate) the differences, since I don't have to worry about damaging my personal political fortune.

With S.3861 being what the administration wants, what is different about S.3901, the proposal of Warner and McCain, that causes the administration to brand it as unacceptable? What are the specific terms of the argument between them? Those who don't understand the veiled references and technical terms that politicians use for debate will be bamboozled as negotiations progress.

The language of Warner's proposed legislation, just that part that deals with the limits of treatment associated with interrogation, as passed out of committee, is quite different from the administration's proposal. But it has what may appear to be a "weasel" way around status quo, that being the introduction of the notion of a "grave breach" vs. all the other breaches of common Article 3.

However, the notes associated with 18 USC 2441 describe a bit of dithering, including "1997 -- Subsec. (a). Pub. L. 105-118, Sec. 583(1), as amended by Pub. L. 107-273 substituted 'war crime' for 'grave breach of the Geneva Conventions'." The point being that "grave breach" may not be useful as a "weasel" phrase.


(a) In General- Section 2441 of title 18, United States Code, is amended--

(1) in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3):

`(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or'; and

(2) by adding at the end the following new subsection:

`(d) Common Article 3 Violations-

`(1) GRAVE BREACH OF COMMON ARTICLE 3- In subsection (c)(3), the term `grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

`(A) TORTURE- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

`(B) CRUEL, UNUSUAL, OR INHUMANE TREATMENT OR PUNISHMENT- The act of a person who subjects another person in the custody or under the physical control of the United States Government, regardless of nationality or physical location, to cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the Constitution of the United States.

`(D) MURDER- ...

`(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

`(G) RAPE- ...

And that concludes my presentation of the framework of this argument, hopefully providing the reader with tools to better appreciate part of the debate that will soon unfold in the Senate. You can bet there will be plenty of obfuscation on this subject. It's politically charged in addition to being vitally important - not just to today's "war against terror," but also as we enter wars with other nation states.

Oh, one parting shot, unrelated to interrogation. The Supreme Court, in its Hamdan decision, said something to the effect that Conspiracy is not a recognized offense to be tried by military tribunals. Both the administration's and Warner's proposed legislation deal with that by enumerating conspiracy as an offense.

UPDATE @ Sept 19

Bush offers concession on terror suspects' rights

White House deputy press secretary Dana Perino said the administration would send new language to the Hill in hopes of reaching an agreement and quell a Republican revolt. ...

An administration official said last night that the new language offered by the White House pertains only to U.S. obligations under the Geneva Conventions ...

A week after the Senate committee defied Mr. Bush, three more Republican senators said they oppose the administration's version, joining the four committee Republicans who voted against it. Republican Sens. Chuck Hagel of Nebraska, Lincoln Chafee of Rhode Island and Olympia J. Snowe of Maine said they favor Mr. Warner's bill.

In a further setback for the White House, the House announced yesterday that it would postpone a vote planned for tomorrow on a bill mirroring Mr. Bush's proposal. [H.R.6054]


According to Roll Call (sub. required), 8 Republicans join the trio in opposing the White House: Susan Collins, Olymia Snowe, Richard Lugar, Mike DeWine, Gordon Smith, John Sununu, Lincoln Chafee (natch), and Chuck Hagel.


White House Offers New Proposal on Interrogations
By Jonathan Weisman and Peter Baker - Washington Post

Senate aides and White House officials did not divulge the changes to the initial proposal, but they made it clear that negotiations were restarting after days of heated charges and countercharges. Sen. Lindsey O. Graham (R-S.C.), a central figure in the dispute, said there is now a "50-50 chance" of a deal being struck by week's end. ...

More troubling to the White House and GOP leaders, Henry J. Hyde (R-Ill.), chairman of the House International Relations Committee, indicated he may ask to examine portions of the bill pertaining to international treaties, leadership aides acknowledged.

GOP leaders are concerned that would open a second front on the debate over the Geneva Conventions. Hyde would also like to examine a section of the bill suspending detainees' right of habeas corpus, a provision that civil libertarians strongly criticize but that so far has not been controversial in Congress.

So, revised statutory language to add to the mix at some point, and some light on the parts of the bill other than interrogation techniques. I'll be on the lookout. More news stories and editorials on the tough interrogations subject can be read by clicking through this summary and this piece, both at

"Ask the White House" - Sept 18 Transcript

Erik, from Miami, Florida writes:
If the interrogations of US detainees is and always has been legal, why are legislative changes necessary to continue 'interrogating' detainees? If our 'interrogators' have been doing this for five years, and it was legal, why do we need changes now?

Steven G. Bradbury
The short answer is because of the Hamdan case. There, the Supreme Court has now told us for the first time, contrary to the determination made by the President in February 2002, that our armed conflict with the international terrorist organization al Qaeda is actually not an "international" conflict and therefore that Common Article 3 of the Geneva Conventions applies to protect captured al Qaeda terrorists.

Yep - accepting the wrong premise, "international character of the conflict," instead of getting to the relevant argument, which is that certain personal actors are expected to be outside of the protections afforded by the Geneva Conventions. It's like arguing over the penalty for violating the speed limit, when the offenders are drivers deliberately leaving the road to attack pedestrians on the sidewalks.

UPDATE @ 18:30

U.S. Senate's Republican Policy Committee policy paper

The above was issued on September 19. Hat tip to for the lead. Reading the policy paper, I notice that it never mentions 18 USC 2340(2), 18 USC 113, or 18 USC 1365. Not once. In my book, this smells like a deliberate game of "hide the ball." What's the big deal about those particular statutory references anyway? Why avoid them?

From page 14 of the policy paper ...

SASC bill [S.3901] supporters contend that amending Title 18 provides the protection necessary for the CIA program to continue. U.S. personnel who act in compliance with the DTA and U.S. laws need not fear prosecution under Common Article 3, they argue. They also believe that the program can continue if the Department of Justice issues opinions that certain interrogation tactics are permissible, even if they may not appear permissible based on foreign interpretations of Common Article 3. Supporters of the Administration position [S.3861] contend that Justice Department lawyers will be unwilling to issue opinions validating interrogation tactics given the political repercussions over the past several years when other such opinions were issued by other government attorneys. 78 Also of concern is whether the Supreme Court would find an executive branch interpretation adequate, in light of the Court's dismissal of the executive branch's traditional role in interpreting treaties in the Hamdan case.

78 In particular, former Assistant Attorney General Jay Bybee and Deputy Assistant Attorney General John Yoo have faced substantial political attacks and accusations due to their efforts to determine what interrogation techniques should be permissible. Related attacks have been leveled against Department of Defense General Counsel William J. Haynes.

Senator Kennedy's Press Release of March 7, 2005 is as good an introduction as any to the roles of those players. A quick aside, the "Haynes" referred to in Kennedy's press release is the same Haynes that Goober Graham has (allegedly) been holding up for appointment to a Circuit Court assignment.

I found this Human Rights Watch: List of and links to documents to be a handy historical reference. An analysis of some of the Bybee memo is at, and while I shouldn't need to, I remind readers that I don't much care what the advocate says in argument, I want to see the source material so I can make up my own mind, thank you very much, and the "lawofwar" site contains references and links not present at the hrw site.

Items to read include:

  • The so-called "Bybee Torture Memorandum". Read it.
  • The 71 page "Haynes Working Group" report (caution, 6.6 Mb PDF at the link), which describes interrogation techniques in some detail, and which also has a comprehensive discussion of relevant statutory, international law and treaty factors.
  • Bybee Treaty Memorandum (caution, 3 Mb PDF at the link), which has the primary conclusion that some fighters are outside of the protection of the Geneva Conventions. I happen to agree with that conclusion as a general proposition - some fighters are and should be outside of the protection of international treaty. See Blackstone. I don't however, agree with the breadth of application suggested in the Bybee Treaty memo.

UPDATE @ Sep 20

Set of articles from September 20

The situation appears very much up in the air. It's smart that present negotiations relating to specific statutory language are happening out of the public eye. It's amazing to me that this subject is accompanied by this degree of political posturing and obfuscation.

UPDATE @ 16:30

Senator Specter pokes a different hole in the proposed military tribunal bills, both the administration's version (S.3886) and the Warner/McCain version (S.3901). This "new hole" relates to habeas corpus. Some discussion at this article at balkin.blogspot.

He also expresses that he sides with the Warner, McCain and Graham position regarding the administration's initial proposed clarification of Geneva Convention common Article 3.

I think the administration's plans for having military tribunal legislation completed before October have just been shot down, hard. Senator Specter asserted that the Judiciary Committee has jurisdiction over at least some of the substantial law contained in the proposed legislation, and to this date, the Judiciary Committee has not handled the proposed legislation. Senator Specter said he has asked Frist to submit the proposed legislation to the Judiciary Committee.

UPDATE @ Sept. 21

Democrats Sit Out Detainee Debate

... One result of the political maneuvering is that at least one major issue has been omitted from congressional debate. The president's proposal would allow suspects to be held indefinitely without "habeas corpus," the right to protest one's detention in court.

... Sen. Carl Levin of Michigan, top Democrat on the Senate Armed Services Committee, said he wants to amend the habeas corpus provision but his office declined to provide details. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, asked leadership Wednesday to allow his panel to review it.

A Deal is Announced

UPDATE @ 16:32

Senator Frist announcing a deal between WH and the objecting Senators. Senators Graham and McConnell can be seen in the background, grinning. House and Senate folks haven't yet seen the language of the agreement.

Senator Warner: Thanks Frist & McConnell. With the Committee structure, Armed Services Committee has a service and a duty, which it performed. He wants to thank McCain and Graham as well, and the President and his team, who made themselves available throughout negotiations. The matter has to be carefully considered by both chambers (Senate and House), and it's not a deal until signed into law by the President.

Hadley: Have a framework for how to move ahead ...

Networks cut away. It sounds as though the specific language won't be available to the public today.


Bush, GOP reach agreement on tribunal laws MSNBC

Bush, GOP Rebels Agree on Detainee Bill

Statement by the President

5:04 P.M. EDT

THE PRESIDENT: I want to thank the members of the United States Senate for working with my administration to meet our top legislative priority, and that is a law that will help us crack the terror network and to save American lives.

I had a single test for the pending legislation, and that's this: Would the CIA operators tell me whether they could go forward with the program, that is a program to question detainees to be able to get information to protect the American people. I'm pleased to say that this agreement preserves the most single -- most potent tool we have in protecting America and foiling terrorist attacks, and that is the CIA program to question the world's most dangerous terrorists and to get their secrets.

The measure also creates military commissions that will bring these ruthless killers to justice. In short, the agreement clears the way to do what the American people expect us to do, to capture terrorists, to detain terrorists, to question terrorists, and then to try them. I hope the Congress will send me legislation before it wraps up their business next week.

Thank you.

END 5:06 P.M. EDT


Critical National Security Program Will Continue
from the Office of Senator Mitch McConnell

"The President was very clear that any legislation on terrorist detainees must ensure that our intelligence-gathering interrogation program can continue. As the President said, this valuable program has saved innocent American lives and is preventing future terrorist attacks. The legislation we will soon consider on the Senate floor meets the President's criteria. This is a big win in the continuing war on terror."

Contents of the Revised Proposal

UPDATE @ Sept 22

Hat tip to for a link to the agreed statutory language relating to the treatment of detainees under interrogation. The post there also contains a link to the agreement pertaining to the trial process (handling of classified information), but that's not the subject of -THIS- post.

In short, the agreed language modifies 18 USC 2441, the War Crimes Act, by defining grave breaches of common Article 3 of the Geneva Conventions in the following fashion ...

In new section 18 USC 2441(d)(1), list prohibited conduct, including:

  • (A) TORTURE - recites "severe physical or mental pain or suffering"
  • (B) CRUEL OR INHUMAN TREATMENT - recites "severe or serious physical or mental pain or suffering"
  • (F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY - recites "serious bodily injury"
Notice the differentiation between "severe" and "serious"? I'm not clear on the significance of this, if any, but some of the Senators are pointing to this as having some effect. Anyway ...

In new section 18 USC 2441(d)(2), define:

"(A) the term `severe mental pain or suffering' shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title.

"(B) the term `serious bodily injury' shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title.

Without having taken the time to parse the balance of the language, my first reaction is that it is a combination of meaningless smoke and a shifting of some power to the executive to define some offenses short of war crimes under the War Crimes Act.

The bottom line is that Warner, McCain and Graham did not get what they wanted, which was to avoid the creation of specific limits of conduct that constitute a violation of common Article 3, more particularly, to avoid making conduct short of 18 USC 2340(2) and 18 USC 113 as NOT against common Article 3. All they got was political cover in the form of doublespeak and smoke.

UPDATE @ Sept 23

At 8:38 AM, I'm still waiting for the Congressional Record to be updated, so the bill numbers (if not the text) can be obtained. Meanwhile ...

Hat tip to Marty Lederman at "Balkinize," the article Oh, Well, That Explains It links to a NYT Graphic illustrating 18 USC 2340(2) and 18 USC 113.

Arguably a simpler presentation than my nearly week-old shout-out that the bottom line of this debate is over referring to 18 USC 2430(2) and 18 USC 113 or not, and the NYT graphic has the benefit of illustrating the "severe vs. serious" language - where the only new legal phrase involves application of the word "serious" to modify "mental pain or suffering."

UPDATE @ Sept 24

Senator McCain on CBS Face the Nation. Notes scribbled as he answered questions.

Schieffer: "Is it a done deal? Will Congress go along? And the even larger question, has the war in Iraq increased the risk of terrorism?"

McCain is in the studio. John Harris of Washington Post is also in the studio. First question is based on the (false) premise that action in Iraq has hurt the war on terror. McCain says he doesn't know anything about it because he's not on the Intelligence Committee. He says that we need to prevail in Iraq, if we fail, our problems become more complicated. If not Iraq, some other object would be used to recruit terrorists.

What to "Iraq has made us safer?" which the President has said - it seems opposite of what the intelligence agencies have concluded. He won't speak for the President, but this is a war of ideology and the best long term solution is to give them an open and free society. Schieffer says the WH has replied that the leak is not representative of the contents of the document, to which Schieffer asks "the leaker must have been motivated because the WH was not being truthful."

McCain says he thinks the tactics in Iraq were flawed. Not enough troops to begin, etc. But this is not reason to leave, we should fix mistakes and stay the course. Bottom line is a need to expand the Army and Marine Corps - to relieve pressure on the National Guard.

McCain notes that Afghanistan is not going easy, North Korea is also looming. Now they go to the negotiated agreement on the interrogation.

What's the difference between serious and severe pain? This is a smoke screen, see the statutes. The fact that the President may publish interrogation techniques (presumably these being some that are NOT the most extreme permitted under the law) does not preclude the application of unpublished techniques that are less than what is permitted under the proposed law, i.e., short of the definitions of 18 USC 2340(2) and 18 USC 113.


My comments - an aside from McCain's dissembling.

Read the statute to see the difference between "Torture" and "Cruel and Inhuman Treatment," which boils down to adding two elements and creating a new legal standard of "serious" (vs. severe) harm. Torture requires (and cruel and unusual does not):

  • the specific intent of the actor to cause damage to the subject
  • for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind

Before the new legal standard of "serious harm" was negotiated, the harm to the subject had to be "severe," which roughly translates to PROLONGED mental or PERMANENT physical damage.

Under the proposed new legal standard, "cruel and inhuman" is less than torture not just because of the "intent" and "for the purpose" elements listed above, but also because the eventual MENTAL harm must rise to the level of "serious," which means it:

  • must be serious [circular] and non-transitory (which need not be prolonged)

What's the difference between "prolonged" and "non-transitory (which need not be prolonged)"? Remember, this language is touted as adding the clarity and precision necessary to permit the CIA interrogation program to go forward.


Will the proposed legislation prohibit the interrogation technique of "long standing"? McCain says it's hard for him to get into the specific techniques, but he objects to extreme stress positions (and he specifically objects to waterboarding). He points out that he is also opposed to severe mental and physical pain, and says that a technique that causes an instantaneous occurrence of excruciating pain is prohibited. [Read the statute - there must be bodily injury in combination with extreme physical pain to find the occurrence of "serious physical pain" under the statute. No bodily injury, no illegal serious physical pain].

McCain is asked about the signing statement associated with the DTA, McCain says he knows of no violation by the administration. "We all understand the need to collect intelligence, and I believe the administration is working in good faith."

UPDATE @ 13:55

Shameless lifting from National Security Advisors - A national security law blog ...

From CQ Today, a preview of the legislative agenda this week with respect to the detainee and surveillance bills (including links to both the separate bills and the combo package):
Buoyed by the breakthrough on terrorist tribunal legislation, Senate GOP leaders will try to combine the detainee agreement with a bill on warrantless eavesdropping for a floor vote this week -- a move that could burnish the Republicans' national security credentials as they hit the campaign trail for the Nov. 7 midterm elections.

But with no agreement from Democrats -- much less from Republicans -- on a combined measure, Senate Majority Leader Bill Frist, R-Tenn., has hedged his bets by introducing three bills: one (S 3930) that reflects the detainees agreement, a second (S 3931) that would authorize judicial review of the surveillance program by a special court, and a third (S 3929) that combines the two. All the bills were introduced Sept. 22 using a Senate rule that allows leaders to bypass committees and bring bills directly to the floor.

"The goal is to get one of these bills on the president's desk by the end of the week," Senate Majority Whip Mitch McConnell, R-Ky., said after the bills were introduced. "But we want to maximize the possibility of having a package agreement."


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