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The Senate Steps Up:

Yesterday the Senate voted 90-9 to set limits on the handling of detainees. There is coverage of the vote here and here. I do not know whether the standard adopted by the Senate is the best approach, but I nonetheless view the vote as a positive development.

If anything, this newfound Congressional willingness to address the rules of detention is long over due. While I certainly believe that the Executive Branch is due a fair degree of deference from the courts in its execution of war-related activities, the Constitution confers the ultimate responsibility for such matters to the legislature. Article I, section 8 explicitly delegates the power "to make Rules concerning captures on Land and Water." Congress also has the power "to make Rules for the Government and Regulation of the land and naval Forces." Viewed in this light, Congress is not interfering with executive power. It is exercising a responsibility the Constitution explicitly places in the legislature's hands.

Absent Congressional enactments specifying how military detainees are to be treated, the precise limits of the executive's authority are necessarily ambiguous. This ambiguity may give the executive some measure of leeway -- a leeway the White House and military apparently want to preserve -- but it also has unfortunate consequences. Among other things this ambiguity encourages legal challenges to military operations and invites the courts to second-guess decisions that should be made by the political branches. Insofar as the legislature sets clear rules, there will be less room for the judiciary to interfere. If one fears excessive judicial meddling in the conduct of the war on terror, as I do, one should applaud this development.

Again, I am expressing no opinion on the substance of the standards adopted by the Senate. I do not know whether they are stoo strict or too lenient. Rather, I am suggesting that as an institutional matter we should welcome the Senate's willingness to fulfill its Constitutuonal obligation to establish rules for military conduct. I hope that the House will follow suit.

Anonymous Coward:
I'm fairly certain that "captures" refers to prize vessels and other confiscated goods in wartime, not to people.
10.6.2005 4:51pm
Huggy (mail):
This is a non-event. Things that got reported and acted upon will not be effected by such a law. If anything happened that wasn't reported it will still go unreported.

Does this law give inspection rights to the International Red Cross? Since the IRC is now highly partisan I don't think that would be a good thing.
10.6.2005 4:56pm
Robert Lyman (mail):
Text of the amendment here (scroll down for "SA 1977").

I agree this doesn't seem to do much. No remedies, no modification to the UCMJ, which might actually make a difference. Just an instruction to do things a certain way.
10.6.2005 5:12pm
Kory (www):
This law is meaningless or a terrible idea.

If it just is a feel good 'torture is bad' law, it is meaningless. If it purports to specifically define 'poor treatment', it is the first step in the destruction of our military as an effective force.

I don't want our military to be handcuffed like our society is, with hundreds of volumes of ponderous legal jargon telling what is and what is not illegal (cases in point - the tax laws, campaign finance laws, etc.)

Once you have politicians and interest groups defining 'poor treatment', we are going to have to have legions of attorneys present everywhere to ensure compliance. And legions of special interests and human rights groups forever editing those definitions.

Does the current vague standards allow for abuse? Yes. But when it comes to war, I will place my trust in the vast majority of men and women in the armed forces to do what is proper, rather than a stifling bureacracy trying to define it for them.
10.6.2005 5:14pm
Ugh (mail):
I think this law is a bad idea because (a) the administration will argue that it shows it has done nothing wrong and (b) it gives Congress an excuse to go on ignoring it, having "taken care of it" with this law.
10.6.2005 5:26pm
PersonFromPorlock:
I don't want our military to be handcuffed...with hundreds of volumes of ponderous legal jargon telling what is and what is not illegal.

It's a bit late to worry about that: the UCMJ was passed by Congress almost sixty years ago. Admittedly, it doesn't run to "hundreds of volumes" and is lithe, as laws go, but it covers -- defines, really -- exactly what "is and is not illegal" for military members.

Believe it or not, the military is not the President's toy, to do with as he wishes. Congress tries to act like it is so as to blow off its own responsibilities under the Constitution, but Juan is exactly correct: the responsibility is there.
10.6.2005 5:40pm
MatthewC (mail):
Anoymous Coward said "I'm fairly certain that "captures" refers to prize vessels and other confiscated goods in wartime, not to people."

AC - Remember that this was written almost 100 years before the end of slavery. The word "captures" probably included people, as well as confiscated goods and vessels.
10.6.2005 5:40pm
Robert Lyman (mail):
Kory,

We have legions of attorneys scrutinizing the actions of our men and women in uniform. They are called "The Judge Advocate General's Corps." And we have hundreds of volumes of ponderous legal jargon known as "West's Military Reporter." Military justice has existed as long as we have had a military, and there have always been laws and rules (including for the treatment of prisoners) that our soldiers, sailors, and marines have had to obey or face serious discipline.

So I don't see that anti-torture rules are nearly the threat that you seem to think they are. Indeed, according to the amendment (which I will reproduce below, since the link I provided is broken), you will see there is something called the "United States Army Field Manual on Intelligence Interrogation," which presumably contains lots of rules and instructions which our soldiers seem intelligent enough to follow.

SA 1977. Mr. MCCAIN (for himself, Mr. GRAHAM, Mr. HAGEL, Mr. SMITH, and Ms. COLLINS) submitted an amendment intended to be proposed by him to the bill H.R. 2863, making appropriations for the Department of Defense for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:


At the appropriate place, insert the following:

SEC. __. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

(a) IN GENERAL.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

(b) APPLICABILITY.--Subsection (a) shall not apply to with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

(c) CONSTRUCTION.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

SEC. __. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.

(a) In General.--No individual in the custody or under the physical control of the

[Page: S10909] GPO's PDF
United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.
(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(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.
10.6.2005 5:43pm
Anonymous Coward:
MatthewC-

Probably right. Question, though, whether that means the term is expansive enough include non-slave people like Jose Padilla, or simply includes property that happens to be human chattel.

I think that JNV's case is no weaker for not including that one provision.
10.6.2005 5:56pm
Columbienne:
It's odd to me that people see fit to post about how terrible the rule of law is...on a law blog!
10.6.2005 6:10pm
Brennan:
Re the meaning of "captures" in Art. I, sec. 8. I'm no historian, but Google quickly found me this page from the Library of Congress which claims that:



The colonies' first measures of resistance to British rule were enacted before they had officially declared themselves independent, and without a formal declaration of war. As combat between British troops and American militia increased, Congress quickly saw the need for formal rules and procedures in handling prisoners. A resolution, passed on May 21, 1776 and published by order of Congress, included specific instructions for feeding, housing, and imprisoning British prisoners of war.


A link to an image of the resolution is included . (It is not flattering to the current Congress to consider how much more quickly the Continental Congress moved to lay down the law here.) So, though this bit of history obviously predates the Constitution, it seems more than possible that the founders would have thought that Congress could have properly exercised control over POWs and therefore would have included that as a specific delegation of power. Thus, "captures" might easily be read to include both cargo and combatants. If anybody has knowledge suggesting that "captures" was a significantly more specialized term circa 1787-89 than it is today, I'd like to hear it.

Also, and this is a real question, if "captures" only covered property, would that make the letters of marque provision redundant?
10.6.2005 6:30pm
Robert Lyman (mail):
Looks like the first step in the destruction of our military as an effective force was taken a rather long time ago.
10.6.2005 6:43pm
Christopher (mail):
Great post Juan N-V. Thanks for returning from the world of "are PB+J sandwiches, Plato, Star Wars, the new Mustang....right wing?"

Kory, so you think that intelligence collected from prisoners has been a major key to our military's effectiveness in the past? Do you have evidence for this, or at least an anecdote?
10.6.2005 7:02pm
Hank:
Re Juan N-V's post: Sometimes a cool legal analysis misses the point. I'm glad that you think this vote is a positive development. Do you also oppose the Holocaust and the Gulag? TORTURE IS EVIL, dammit. (It's also detrimental to U.S. interests.) George Bush, Alberto Gonzales, and the nine senators who opposed the bill are therefore evil. What more need be said?
10.6.2005 8:25pm
cfw (mail):
What I like about the proposed law, if it is read broadly, is that interrogators will be bound to act in Bagram or Camp Mercury as they would in Compton.

McCain seems to say the place or citizenship of the person being interrogated is not an excuse for exceeding the bounds of the US Constitution.

This is simple, fair (in a golden rule sense), and easily trainable. JAGs know the applicable sub-rules from JAG School and law school. MP's and CID know them (or should) from training. MI folks can learn them. US citizens know them (vaguely) from TV, MSM generally.

To me, the proposal says, in effect, if American criminal procedure is good enough for Compton, it is good enough for Camp Mercury.

I am not sure the text of the law is as clear as one would like.

"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."

Does this mean the US Const. amendments apply overseas?

Does this statute apply just to military as opposed to civilians working for DoD, CIA, contractors, etc?

What about rendition or having the abuse done by third party nationals?

What about the 4th Amendment? The 6th Amendment? Does incorporation doctrine apply?

Despite nits one could pick, I see a definite step in the right direction. Bravo for McCain!
10.6.2005 8:29pm
Anderson (mail) (www):
I'm warmly pleased that JNV has posted this and that, for the most part, conservative commenters here recognize that it is indeed "conservative," in the best sense of the word, to oppose the abuse and torture of our prisoners.

As for the opposite of the most part:

"If it purports to specifically define 'poor treatment', it is the first step in the destruction of our military as an effective force."

I think that the indiscipline and broken morale which are attendant upon (1) good troops not knowing the rules and (2) bad troops committing abuses, is much more dangerous than actually requiring our soldiers to obey moral and legal standards that should be obvious to a child of 10.

See, if you will, the rather agonized letter of Captain Fishback of the 82nd Airborne, practically begging for clear standards so that he knows whether the behavior he sees is or isn't against military law.

I was brought up to take for granted that torture was wicked. Unfortunately, the Pentagon and the White House are being directed by people with different upbringings. God bless the Senators who voted for the amendment, and let's hope it's not just an empty show. This country needs 3 branches of government.
10.6.2005 9:03pm
John Jenkins (mail):
Hank, all of those people would likely agree with you that torture is evil. The difference would lay, therefore, in the definition of torture.

I am wondering what rights they feel are vindicated by the Fourteenth Amendment acting alone that an enemy prisoner might have. Including the Eighth Amendment makes sense, but the Fifth doesn't (the right against self-incrimination would apply to any criminal prceeding anyway, but do they REALLY mean to have the Miranda rights apply to enemy prisoners, given that the Miranda rights flow from the 5th Amendment?)

It says cruel, unusual, or inhumane treatment prohibited by those amendments but those words seem to be superfluous, or at least problematic in that we don't know what are the non-"cruel, unusual, or inhumane" actions that are protected by those amendments (and doesn't the 8th amendment prohibit ALL cruel and unusal punishments leaving only the "inhumane" actions prohibited by the Fifth and Fourteenth Amendments, whatever those are).

I think this is a good idea and something Congress should do but, as usual, the vaunted legislators have managed to turn out something that does little or nothing to actually clarify things.

It would seem easier to pass a general criminal statute in title 18 that prohibited torture of prisoners (which I bet there already is without looking; meaning that this is just the Senate wanting to look impressive) that looked at the TOC to see whether something was in fact torture. This statute does little to give guidance to anyone and I think is just a headline-seeking move by our congressional headline-seeker-in-chief.
10.6.2005 9:35pm
Anderson (mail) (www):
It says cruel, unusual, or inhumane treatment prohibited by those amendments but those words seem to be superfluous, or at least problematic in that we don't know what are the non-"cruel, unusual, or inhumane" actions that are protected by those amendments

FWIW, it seems to me that the advantage of these terms is that they apparently incorporate our jurisprudence on what they mean. Basically, "if it's illegal in an American jail, it's illegal in Abu Ghraib."

Especially given that, IIRC, a lot of our MP's are civilian prison guards, having the same standard seems like it would avoid confusion.

And as the framers of the 8th Amendment appear to've noticed, the depravity of human thought is such that any express delineations would be cleverly evaded. Any decent-sized exhibit of medieval torture devices shows how creative we get when we're excited about the prospect of torturing somebody.
10.6.2005 10:25pm
Jacob Lister (mail):
When the US ratified the Convention Against Torture (CAT), it did so with a reservation stating that 'cruel, inhuman or degrading treatment or punishment' as used in the CAT meant cruel, unusual and inhumane treatment or punishment prohibited by the 5th, 8th and 14th amendments.

The international obligations of the US are thus the same as its obligations under the Constitution. It does still have to prevent private individuals from torture. The Constitution doesn't exactly apply overseas, but the international law is congruent to the constitution.

A couple things this does:
First, there is plenty of information about what is and isn't a violation of one of those amendments. Courts and JAG officers know what the amendments mean. Non-lawyers can certainly learn. Even foreign lawyers should be able to figure it out.

Second, a US trial would prevent a case being brought before the International Criminal Court. A verdict of not guilty by a US court means the defendant did not violate international law, and a verdict of guilty means the defendant was punished.

So I think the continuation of the "5th, 8th and 14th amendment" language just keeps everything consistent. Violations of the CAT are violations of domestic law that is applicable to military personnel, contractors, and private citizens.
10.7.2005 12:11am
Robert Schwartz (mail):
An appalingly bad idea. The country is chocking to death under the rule of judges and lawyers and you want to have them run the Military too. Somebody needs to save the country from the lawyers.
10.7.2005 7:25pm