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Agreement Reached on Torture Ban:
CNN has the story. I trust that Marty "Torture" Lederman will weigh in soon over at Balkinization.
JohnAnnArbor:
Not to mention Andrew Sullivan, possibly the most self-righteous blogger ever, happily comparing anyone who disagrees with him to Soviet gulag-masters....
12.15.2005 4:03pm
Justin (mail):
I'm not sure why giving Lederman a nickname was done, but I hope it was not done to denigrate his concern, which seems much more relevant than the pet issues of most law professors.
12.15.2005 4:17pm
Huck (mail):
If the 'slippery slope' argument is valid anywhere, it is here.

There are very few absolute 'do not this' in the basic foundations of western culture and civilization, but the torture issue is among them.
12.15.2005 4:30pm
SimonD (www):
How noble. The White House consents to not veto a law prohibiting torture which has garnered support in both chambers of Congress (passed 90-9 in the Senate and approved 308-122 in the House) not only to pass the bill, but to pass it over the President's veto. Underwhelming.
12.15.2005 4:43pm
J..:

I'm not sure why giving Lederman a nickname was done, but I hope it was not done to denigrate his concern, which seems much more relevant than the pet issues of most law professors

Orin appears to just be playful. I got a chuckle, and I assume Marty will, too.

I like reading what they both have to say on the subject.

It seems atypical for a body to instruct the conferees how to negotiate language in a conference bill. How often does it happen?
12.15.2005 4:43pm
Richard Bellamy (mail):
Why do Bush and McCain hate America?
12.15.2005 4:47pm
Commenterlein (mail):
John,
Sullivan has pointed out that the torture techniques used by "our guys" were in many instances similar to the ones used in Soviet Gulags (but not when the Soviets tried to get useful information, in which case the techniques don't work well. Quite ironic.) If you are upset about reality, then work to change it, and don't disparage the messenger.
12.15.2005 4:47pm
Medis:
I'm a little concerned about this defense. Not so much because I want the maximum liability for prior acts . . . I just want to make sure the prohibition is immediately effective.
12.15.2005 4:52pm
Medis:
Oh, and whether one agrees with Sullivan or not, I think it is clear that his beliefs are genuine. I'm not sure that can be said of all those who have attacked him.
12.15.2005 4:58pm
Anderson (mail) (www):
Justin, I suspect Lederman might prefer "no torture" as an epithet, but given Kerr's history of respectful interest on the issue, I think we can safely reject any intent to denigrate Lederman.
12.15.2005 5:00pm
JohnAnnArbor:
Sullivan also calls being wrapped in an Israeli flag or being touched with FAKE menstrual blood "torture." His definition of torture is extraordinarily loose, so I take his claims of widespread torture as unlikely.
12.15.2005 5:02pm
Medis:
JohnA2,

I won't claim to speak for Sullivan, but that sounds like "degrading" treatment which does amount to torture. Degrading treatment is also banned by what is usually called the Convention against Torture (the full name is actually the "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment"), and by McCain's bill.

So, perhaps that is what Sullivan was talking about. Just a thought.
12.15.2005 5:13pm
Medis:
Sorry ... I meant to write "does NOT amount to torture". That missing "not" is rather crucial.
12.15.2005 5:14pm
JohnAnnArbor:
The definition of "degrading" would be rather important if it's to be banned. Is it "degrading" to have your tea served at 5pm instead of 4pm?
12.15.2005 5:27pm
Smithy (mail):
This is very disappointing, frankly. The administration has had great success in preventing terrorist attacks by using extreme interrogation methods to obtain information from suspects. The use of "torture", if you want to call it that, should be expanded rather than restricted.
12.15.2005 5:32pm
Daniel Chapman (mail):
I'm sorry I'm too lazy to read the bill. Does this provide any cause of action in US courts or before any foreign tribunal for "interrogated" prisoners? Thanks in advance.
12.15.2005 5:38pm
Salieri:
Smithy:

Can you cite any instances of terrorist attacks being prevented by the use of any of the extreme interrogation methods being complained of?
12.15.2005 5:40pm
The Original TS (mail):
I must confess, I never thought I'd see the day when it was actually necessary to have a debate in this counntry about whether it was OK to torture people.

Huck is exactly correct that torture is particularly subject to the slippery slope. What's next? People asserting qualified immunity because the right not to be tortured isn't really clearly established?

God Bless John McCain. Lately, he seems to be the only politician in America who combines the stature to get things done with the common sense and decency (two extremely American values) to get the right thing done.
12.15.2005 5:44pm
Bobbie:
Smithy, does it bother you that torture was used to get faulty intelligence that was used to justify the war in Iraq?
12.15.2005 5:45pm
Smithy (mail):
Can you cite any instances of terrorist attacks being prevented by the use of any of the extreme interrogation methods being complained of?

Scott McClellan cited several when he was being pressed by insurgent Helen Thomas.
12.15.2005 5:50pm
Zeno:

The administration has had great success in preventing terrorist attacks by using extreme interrogation methods to obtain information from suspects. The use of "torture", if you want to call it that, should be expanded rather than restricted.


If one accepts a utilitarian morality, then it is theoretically possible that torture may be permissible, even mandatory.

But I would hope that, in the light of Christmas, we would remember utilitarianism isn't always the morality that we use to set boundaries on our behavior. Sometimes, to use a secular example, we say that autonomous persons are not to be used as means, but are to be treated as ends in themselves.
12.15.2005 5:50pm
Salieri:


Scott McClellan cited several when he was being pressed by insurgent Helen Thomas.


I missed that. Do you have a link, or at least a date?
12.15.2005 5:50pm
Daniel Chapman (mail):
Supposedly Jose Padilla was exposed through interrogation, but I'm not sure exactly what "techniques" were used.
12.15.2005 5:54pm
Smithy (mail):
Daniel, I think that was one of the examples cited. I will go try to google for the examples McClellan mentioned.

Bear in mind, they'd be foolish to tell us about most of it. That would be letting Al Qaeda know what we do or don't know. I wouldn't be surprised if there was more evidence of an Al Qaeda - Saddam connection but that we're keeping it hushed up so that Al Qaeda doesn't know what info we have. A good poker player never lets his opponents know what he's holding.
12.15.2005 5:57pm
crane (mail):

Scott McClellan cited several when he was being pressed by insurgent Helen Thomas.


She's of Middle Eastern origin, therefore she's an evildoer? Real classy there, Smithy.

And, just out of curiosity, is there any evidence that the intelligence gained through the use of torture would not have been gained if the interrogators had stuck to non-degrading, non-torturous techniques?
12.15.2005 5:58pm
Jeff R.:
Incidentally, why is the fakeness of the menstrual blood at all salient? Is that, somehow, where the line is drawn, and it would be torture to touch someone with real menstrual blood?
12.15.2005 5:59pm
Salieri:

A good poker player never lets his opponents know what he's holding.

I'm sure you don't think that the American people should just put their full faith in their government when they're told that "extreme interrogation techniques" are necessary and effective. But if they aren't going to give us any information about the efficacy of these techniques, how do we know their use is justifiable? There must be some oversight, so where should it come from?
12.15.2005 6:04pm
B. B.:
This is all just window-dressing. They can take all the teeth out of the legislation by changing the Army Field Manual, and guess what they've already done before Bush decided he would support McCain's bill...

http://www.nytimes.com/2005/12/14/politics/14detain.html
12.15.2005 6:09pm
Smithy (mail):
Salieri, in a time of war the people must stand behind the president. And I feel that this president has earned our trust. He doesn't spin and parse the way some recent leaders have.
12.15.2005 6:12pm
Huck (mail):
I don't get it.

Six years ago, nobody would have dared to propose torture to get intelligence.

Now, some guys in the WH seem to like it, and embolstered by that some people begin to question or dislike a basic tradition of western civilization.

9/11 was bad. A dirty bomb would be bad. Agreed.

But the US never thought about torture while fighting Nazi Germany and Imperial Japan in WWII. Nor did it during the cold war, facing immidiate annihilation.

It was a no-brainer.

9/11 and its possible follow-ups are way less threatening than the nuclear war always imminent in the 40 years of the cold war.

If torture was not on the agenda then, why now?

It's indecent. It's childish.

The western civilization has values. Even if some guys in the WH seem not to recognize them. The Law Lords of the UK made an unanimous decision about that less than two weeks ago. And the UK is the closest ally the US have in the world.
12.15.2005 6:14pm
Salieri:
Smithy, I'm sorry but I don't care how much a president has done to earn my trust, I can't support giving them that much power without oversight.
12.15.2005 6:15pm
Medis:
JohnA2,

It would indeed be nice if all legal terms were subject to formulaic and precise definitions. Unfortunately, that is often not the case (see, eg, "negligent," "reasonable," "malice," or so on).

Anyway, with "degrading treatment", the general idea is that you are trying to shame, humiliate, or otherwise deprive the detainee of his or her basic dignity. Applying this concept would be easy in some cases--eg, we know that if Saddam had captured one of our downed pilots in the first Gulf War, stripped him naked, smeared him with feces, and then paraded him around in front of a bunch of laughing goons, that would be "degrading treatment" barred by the CAT. Conversely, barring some extraordinary circumstance, altering that pilot's tea time would probably not be degrading treatment.

For more difficult cases, as with difficult cases involving other broad legal terms, we would probably have to leave it to the factfinder (jury or trial judge). But I don't think these examples (wrapping someone in an enemy flag, or smearing them with what they believe is menstrual blood) are particular tough. The obvious intent is to degrade the detainee, and hence it is pretty clear that it would be degrading treatment under the CAT.
12.15.2005 6:38pm
Smithy (mail):
Huck, 911 changed everything. We learned that we are not protected by oceans and that the status quo -- in law enforcement, intelligence, and foreign policy -- wasn't good enough. The president has taken a bolder approach than many of his credits wanted, but you have to admit, so far it is working better than anyone expected.
12.15.2005 6:40pm
Medis:
Incidentally, has anyone in the White House kept count of the number of times our mistreatment of detainees has been used against us in enemy propaganda? Just curious.
12.15.2005 6:41pm
Medis:
Smithy,

How do you know the Administration's approach has been working better than McCain's approach would have worked if we had adopted it from the beginning?
12.15.2005 6:43pm
Steve:
Smithy is obviously trolling. Perhaps he is an outcast from that notorious Balloon Juice blog.

I find it interesting that some argue Sullivan's claims of widespread torture should be disregarded because of his broad definition of "torture," but they refuse to draw the same conclusion when the administration, which applies an unduly narrow definition of "torture," claims that it does not torture.
12.15.2005 6:48pm
Medis:
Steve,

That is part of why I think it helps to imagine Saddam doing things to a captured American pilot. I'm pretty sure we would not have so much anxiety in such a case about the difficulty of giving an exhaustive definition of torture, or of cruel, inhuman, or degrading treatment. Rather, we would be pretty confident of ability to classify our pilot's treatment at Saddam's hands.
12.15.2005 6:58pm
Commenterlein (mail):
I have a bold hypothesis: Smithy watches a lot of Fox News.
12.15.2005 6:58pm
Smithy (mail):
Commneterlien: you're right, I watch some Fox. It may surprise you to know that I also listen to a lot of NPR. I like to get information from a variety of sources, so that I get both sides of the argument. That's why I like this blog (which I'm new to.
12.15.2005 7:00pm
Daniel Chapman (mail):
Huck: I don't think the problem is that more people are pro-torture. I think the change is that "torture" has been defined downwards since the Iraq war and Abu Ghraib.

Hot splinters under the fingernails... big no-no. Stress positions, psychological stuff like fake (hell, even real) menstrual blood... whatever works. "A little slappy-face"... as long as there's no grave bodily harm involved, go ahead. These people are violating every law of war we have, and I think it's fair to leave the question of "will this benefit the war effort" to the department of defense.

Doesn't McCain's bill define "cruel and degrading" as whatever is understood by the 8th Amendment? Do you think we would have CONSIDERED extending 8th Amendment rights to the Japanese during WWII even if they were lawful prisoners of war? I don't.
12.15.2005 7:16pm
Daniel Chapman (mail):
Oh yeah... I'd still like to know if this bill allows the prisoner to sue to enforce whatever rights we're granting here. Does anyone know for sure? I assume there is some sort of enforcement mechanism...
12.15.2005 7:18pm
JohnAnnArbor:
That is part of why I think it helps to imagine Saddam doing things to a captured American pilot.

Such a pilot is a lawful combatant, entitled to Geneva protections.

What we're talking about here is non-uniformed unlawful combatants. Whole different story.
12.15.2005 7:42pm
JohnAnnArbor:
Sullivan came through:

"...the Cheney-Rumsfeld axis of brutality..."

My, he is full of himself.
12.15.2005 7:49pm
Medis:
JohnA2,

I'm not sure if you are asserting a legal point, but the CAT does not apply just to lawful combatants, but rather to any person.

But maybe you are asserting a policy or moral point--that we should be allowed to violate the CAT when it comes to certain people or certain circumstances. Still, in that case you are just arguing for a double standard of treatment. That does not imply that if we actually decided to have a single standard of treatment, it would be impossibly difficult to define it.
12.15.2005 7:53pm
Smithy (mail):
"Cheney-Rumsfeld axis of brutality."

The real axis of brutality is the Hussein-bin Laden axis.
12.15.2005 7:54pm
SDOH:

What we're talking about here is non-uniformed unlawful combatants. Whole different story.

That's a legal argument, maybe. What is the policy argument? We are at war, both wish us ill, both are enemies, both may have valuable information, not torturing either may have harmful effects on our safety, etc. What is the policy distinction? (and this is assuming that the person is Al Queda, not getting into the question of how we know, which is what a uniform might go to.) Is it solely that Al Queda tortures us?
12.15.2005 7:58pm
JohnAnnArbor:
My only point is that the Geneva Conventions are there as a guarantee to warfighters: if you follow the rules, you'll be treated fairly if captured.

The very definition of the guys we're capturing is that they do NOT follow the rules. The idea that they should be treated according to Geneva anyway is silly. I am NOT suggesting an alternative of them being roasted over a spit. But agressively asking them questions and creating stress for them is not a problem as far as I'm concerned.
12.15.2005 8:09pm
JohnAnnArbor:
I guess that would be roasted ON a spit over a fire. Still, I'm against that.
12.15.2005 8:13pm
Medis:
JohnA2,

Again, though, the CAT is not part of the Geneva Conventions. In other words, the CAT applies to all people, not just POWs.
12.15.2005 8:20pm
JohnAnnArbor:
The CAT, if it bans being mean to the little dears, goes too far. I'm not sure it does. It's supposed to ban "severe" treatment, right? Is yelling at someone severe? Is making them stand for 12 hours severe?
12.15.2005 8:25pm
The Original TS (mail):
Such a pilot is a lawful combatant, entitled to Geneva protections.

What we're talking about here is non-uniformed unlawful combatants. Whole different story.


Legally, perhaps, but not philosophically.

If you're not willing to accept that torture is antithetical to the core of American exceptionalism, then oppose torture for pragmatic reasons. It's bad policy.

Torture has little utility as an information-gathering tool. As even recent news stories have demonstrated, people will tell you pretty much anything you want to hear under torture. They have no incentive to tell the truth and great incentive to tell you lies, especially if they are hostile to your interests which, as you're pulling out their fingernails, they likely are. There are just oodles of examples of this, even in our own history. The North Vietnamese regularly tortured captured Americans and captured Americans regularly said either nothing of interest or packs of outrageous lies, on some occasions actually tricking their captors. We'll likely have even less impressive results as there is no way, God willing, we're ever going to be as good at torture as the North Vietnamese.

Allowing torture under any circumstances also "hardens up" people all around the world. For every person you're able to extract any useful information from by torture, there are a thousand -- or a million -- who would freely give information if America made even a pretense of living up to its ideals. The true power of America is not that it can break people's legs -- any petty dictator can do that. The true power of America is that it represents something people want to cooperate with. By refusing to torture people under any circumstances, you take one small step toward staking out an absolute moral position. The statement "America will never torture people because it's wrong." means America stands for something. America will only be trusted when it will refuse to do some things that are wrong even if they are expedient.
12.15.2005 8:34pm
SDOH:

I am NOT suggesting an alternative of them being roasted over a spit. But agressively asking them questions and creating stress for them is not a problem as far as I'm concerned.

The CAT, if it bans being mean to the little dears, goes too far. I'm not sure it does. It's supposed to ban "severe" treatment, right? Is yelling at someone severe? Is making them stand for 12 hours severe?


By themselves, these are pretty reasonable. (e.g. assuming that you're not forcing 12 hours of standing naked in hypothermia-inducing temperatures; etc.)

But then it sounds like you have no problem with enforcement of our international obligations, or with passage of the McCain Amendment. Doesn't that, in itself, make you wonder about those who do?
12.15.2005 8:37pm
Medis:
JohnA2,

I believe you are thinking about "torture" under the CAT's Article 1, which is basically defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." There is more to the definition, and we also have some Reservations that further define it, but that is the basic idea.

However, Article 16 of the CAT also bans "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." Severity is not part of that definition.

Again, however, we have a Reservation, which says, "That the United States considers itself bound by the obligation under article 16 to prevent 'cruel, inhuman or degrading treatment or punishment', only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." The McCain Amendment says the same thing.

So, under our Reservation, the CAT bans "being mean to the little dears" to the same extent as the 5th, 8th, and 14th Amendments. For guidance on what that means, you could look to the federal court cases on the subject. Basically, though, the standard was set in Trop v. Dulles, 356 U.S. 86 (1958):

"The exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Finally, I might note that, "When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as it is today." Hudson v. McMillian, 503 U.S. 1 (1992).
12.15.2005 8:56pm
SDOH:
I don't know much... But it would seem like DP of the 5th and 14th circumscribe the tactics that can be used, much more than the 8th. e.g. standing for 12 hours.

I would have to think that being forced to stand for 12 hours would withstand an 8th amendment challenge b/c we've allowed forced prison labor as punishment. But with respect to DP, I'm not sure that a confession gotten after 12 hours of forced standing (or slapping, etc.) would be admitted into evidence. (and could somebody bring a 1983 claim for this?) But I don't know the caselaw. But if DP would prohibit this, then the CAT is much more restrictive than I supposed.
12.15.2005 9:06pm
Ian (www):
I agree with the above that Marty Lederman is best nicknamed with "anti-torture" than "torture."

Jay "Torture" Bybee or John "Torture" Yoo would be appropriate, however.
12.15.2005 9:11pm
Medis:
SDOH,

I agree that the 5th and 14th would supply additional restrictions. But the Court distinguished "hard labor" from "painful labor" in Weems v. U.S., 217 U.S. 349 (1910), suggesting that the latter is degrading and/or cruel ("No circumstance of degradation is omitted. It may be that even the cruelty of pain is not omitted. He must bear a chain night and day. He is condemned to painful as well as hard labor. What painful labor may mean we have no exact measure. It must be something more than hard labor. It may be hard labor pressed to the point of pain.").

So, I don't think all cases of "being forced to stand for 12 hours" would necessarily survive an 8th Amendment challenge, particularly if the detainee was deliberately kept in a position designed to cause pain during that time.
12.15.2005 9:29pm
SDOH:
Medis,
Thanks for the cases, I appreciate them. I do not believe the US should torture, and I believe in the CAP and the McCain Amendment for that reason. However, with respect to treatment that is cruel, inhumane, or degrading under the US Reservation, I just sort of assumed that this would be about at 8th amendment level. I didn't realize that it might be at DP level, which is quite a bit less. (I think - at least with respect to police treatment and exclusions of confessions - though I haven't read the cases in quite a while.)

I do not doubt that some cases of forced labor fail 8th amendment analysis; I was thinking of cases (e.g. forced painless labor) that would presumably pass 8th, but may fail DP (e.g. person confesses after the police force him to work all day, even if it was painless. e.g. At my job. :>)

Have the US obligations under the CAP been interpreted to include treatment for which confessions are excluded as violations of DP; or is DP under the US reservation intended to be applied differently? Is DP meant to be applied to prohibit e.g. (a) treatment of the type that police have engaged in that violates DP and requires exclusion of evidence; or merely (b) treatment following conviction that is cruel, inhumane, or degrading to a degree that constitutes a violation of DP? Is the former (a) interpreted to be the standard for US obligations under the CAP?
12.15.2005 9:56pm
Medis:
SDOH,

No fair asking questions I don't know the answers to. I'm actually not sure what effect the 5th Amendment has been given in this context, and not sure where to look.
12.15.2005 10:12pm
SDOH:
For example, if a legislature were to prescribe a single hard slap (like a "slap on the wrist") as punishment for a crime, I doubt this would in all cases violate the 8th amendment. (though I don't know the caselaw, and this is an assumption.) However, were police to give a hard slap to a suspect they were interrogating, a resulting confession might be excluded as fruit of a DP violation, even if the same treatment - prescribed as punishment - would pass the 8th. (again, no research on my part.)
12.15.2005 10:18pm
SDOH:
oops. sorry, didn't see your last response.
12.15.2005 10:18pm
Dave:
Medis, thank you for the information, especially the quotes on the relevant amendments. How anyone could argue that what we do is legal given U.S. law on the subject is beyond me.

John Ann Arbor: When you say "the Geneva Conventions are there as a guarantee to warfighters: if you follow the rules, you'll be treated fairly if captured," I believe you are oversimplifying. Common Article 3 of the Conventions (it's in all the conventions, which is why it's "common") applies to "armed conflict not of an international character." In such conflicts, "Persons taking no active part in the hostilities, including" detainees "shall in all circumstances be treated humanely," meaning that there cannot "be violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture... [or] outrages upon personal dignity, in particular humiliating and degrading treatment."

The U.S. Supreme Court is currently hearing Hamdan v. Rumsfeld to determine, among other things, whether the War on Terrorism is a "conflict not of an international character." (John Roberts ruled on this a while ago and decided in a 2-1 decision that "not of an international character" meant civil wars only, thus denying Hamdan Common Article 3 rights, and it got appealed to the Supreme Court.) Marty Lederman has an excellent post on this subject which I highly recommend, although it was written before the Supreme Court picked up the case. From Lederman:

When the D.C. Circuit held that Article Three does not apply to the War on Terror, it stripped away all these basic protections from detainees. In place of the split-level protections of Geneva - full protections in state-against-state wars, and at least minimum human rights the rest of the time - Hamdan creates a third tier of "protections," namely no protections at all, in the War on Terror. Where Geneva creates a main floor and a basement, Hamdan digs beneath the basement and adds a dungeon...

Article Three states that it applies only "in case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., parties to Geneva]." The War on Terror undoubtedly is "of an international character," and it occurs in the territories of many states, not one; thus, Article Three does not apply. So goes the argument, and it has some plausibility.

As Judge Williams notes in his dissent, however, the awkward phrase "not of an international character" simply means "not between nation-states." International law has traditionally been defined as the law governing relations among states - the literal meaning of "inter-national." And so, "not international" doesn't mean "internal" - it merely means "not between nation-states." On that reading, the standard one among international lawyers, Article Three does apply to the War on Terror, which clearly is an armed conflict not between nation-states. Initially, the framers of the Geneva Convention considered limiting Article Three to internal armed conflicts; but they rejected that narrow phrasing in favor of the broader phrase "not of an international character." Nor does the phrase "…occurring in the territory of one of the High Contracting Parties" limit Article Three to conflicts within a single state. That phrase is in the Convention simply to ensure that Geneva applies only to states that are parties to it, not states that aren't. Treaties cannot bind non-parties, and Geneva would have been invalid if it purported to apply outside the territory of at least one of its "High Contracting Parties." Today, that is a non-issue, because every state in the world except the demilitarized island republic of Nauru has joined the Geneva Conventions. But in 1949 it was unclear that Geneva would win such universal acceptance, and so the treaty had to add language limiting its scope to states that agreed. The phrase is there purely for jurisdictional purposes, and it means "at least one High Contracting Party," not "at most one."


In other words, if a few of my buddies and I tried to overthrow, say, the Chinese and Mexican Governments, there is good reason to believe that China and Mexico would be obligated not to torture us under Common Article 3. John Yoo and Bush reject this interpretation, but Lederman has some good arguments you should consider.

Dave
12.15.2005 10:30pm
Dave:
sorry, I didn't realize how long that quote was.

Dave
12.15.2005 10:35pm
Humble Law Student:
Medis,

You won't like this, but I think you are a bit off with your interpretation of the US's reservation under CAT. Your quote is correct, but the inferences you draw are mistaken.

The 5th/8th/14th amendments do not apply in the same manner to non-citizens as they do to US citizens. As such, only decisions dealing with the interpretations of those amendments in the context of non-citizens matter, or more particulary, unlawful enemy combatants. All of your references to cases interpreting those amendments deal with US citizens as far as I am aware. As such, they are meaningless in applying the US reservation to CAT.
12.15.2005 11:40pm
Humble Law Student:
edit: in applying them to the US reservation in CAT.
12.15.2005 11:42pm
Dave:
this comments thread was surprisingly productive. I hope someone follows up on this.
12.16.2005 12:32am
Medis:
Humble Law Student,

I'd be interested to see support for your contention that the 5th, 8th, and 14th do not provide the same protection to non-citizens in the criminal justice system (where all my 8th Amendment cases arose). I suspect just the opposite (ie, that non-citizens subject to our criminal justice system are entitled to the protections of due process and the 8th Amendment just as citizens would be).

But I think you might be trying to argue that our Article 16 Reservation waived the applicability of Article 16 to unlawful enemy combatants through this reference to the 5th, 8th, and 14th. But our Reservation says nothing about to whom Article 16 can be applied. Rather, it simply says that the kind of "treatment or punishment" prohibited by Article 16 is the same kind of "treatment or punishment" prohibited by the 5th, 8th, and 14th.

So, trying to read into that Reservation about the kinds of treatment or punishment prohibited by Article 16 a further Reservation that the Article 16 will apply only to certain people, such as people in the ordinary criminal justice system, goes against the plain language of both our Reservation and Article 16 itself.
12.16.2005 7:02am
Medis:
By the way, McCain's Amendment fortunately makes this quite clear: its prohibition extends to any individual under the control or in the custody of the United States government, regardless of nationality or physical location.
12.16.2005 7:07am
CharleyCarp (mail):
The good news for torture proponents is that Graham-Levin-Kyl is approaching passage, possibly today -- this would make claims of torture/other abuse in Guantanamo (at least) unreviewable. And, in its current incarnation, would make evidence obtained through coercion admissible, should the jailers deign to initiate some sort of quasi-judicial process, ever, against a prisoner, which they are not obligated by this law to conduct.
12.16.2005 8:04am
CharleyCarp (mail):
G-L-K has other benefits to proponents of torture. At present, prisoners at Guantanamo have access to lawyers, and can tell them about how they are treated. The lawyers all have security clearances, and can review classified records on the matter. If you eliminate the lawsuits, you eliminate the lawyers. And then the only people who even know of the treatments of the prisoners are those administering it.

The public will stop hearing allegations of torture/abuse, except from those few prisoners who get released. Even then, though, no one outside of government will have access to the classified file, and so it'll be plenty easy to just label the prisoner a nut/malcontent/trained terrorist.

I'm sure Sen. McCain, Mr. Sullivan, and many others will find the ensuing silence comforting -- taking it as proof that the torture ban has been effective.


To put this in terms many of you will find more familiar, suppose in response to the backlash over Kelo, we (a) limit takings to public uses only (not purposes) but also (b) repeal the Tucker Act and section 1983 wrt Takings (and preemptively impose sovereign immunity in states wrt takings). We'd never have to face the outrage of a Kelo decision. And I'm sure we could trust all public bodies to comply with the law as set forth in (a). Right?
12.16.2005 8:23am
Medis:
Humble Law Student,

I note for your information the following passage from Yick Wo v. Hopkins, 118 U.S. 356 (1886):

"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:

Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality . . . .

The questions we have to consider and decide in these cases, therefore, are to be treated as invoking the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court."
12.16.2005 8:25am
Humble Law Student:
Medis,

Great points. I'll have to get back to you tonight. I have a final in a few hours.

I spend enough of my study time on this darn site as it is. . .
12.16.2005 10:39am
The Original TS (mail):
"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:

Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality . . . .

The Forteenth Amendment isn't really relevant to this discussion as it applies only to the states. The federal government can't violate the Fourteenth Amendment.
12.16.2005 1:39pm
SDOH:

The Forteenth Amendment isn't really relevant to this discussion as it applies only to the states. The federal government can't violate the Fourteenth Amendment.

I was only assuming that it was a relevant standard for treatment b/c Medis said that when the US joined the CAT, it made a Reservation:


That the United States considers itself bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

http://www1.umn.edu/humanrts/usdocs/tortres.html

So I would assume that the US reservation embraces a standard of treatment borrowed from the 8th amendment and (at least) the DP clauses. Because DP excludes confessions subsequent to lesser coercive treatment than the 8th amendment proscribes, my question is whether this DP jurisprudence is the actual standard which treatment is measured against under Art. 16 of the CAT.
12.16.2005 1:59pm
Medis:
TOTS,

As SDOH points out, our CAT Reservation specifically refers to the 14th Amendment (as does the McCain Amendment, for that matter). That is obvious support, in fact, for the proposition that the CAT Reservation (and McCain's Amendment) is borrowing the standard of treatment from the 14th (and the 5th and 8th), not its jurisdictional limits.

As an aside, however, that passage from Yick Wo is also relevant for its reasoning. The Court notes that the relevant passages in the 14th refer simply to "any person", and there is no limitation based on nationality. The 5th and 8th, of course, are similarly not limited by nationality.

But I haven't done an exhaustive search on this issue--I just happened to recall that Yick Wo had this passage. Still, I strongly suspect that if Humble Law Student does the research, it will turn out that noncitizens within the jurisdiction of the federal criminal system are entitled to 5th and 8th Amendment protections.
12.16.2005 3:25pm
Humble Law Student:
Medis,

Quick point from my research. I can't find a direct refutation of your excellent source. I'm still looking though :)

Let me bring in another argument. From what I understand that you are saying, the case you cited means that Due Process etc. apply in the exact same manner and method to citizens as non-citizens.

However, that really can't be the correct based upon Ex Parte Quirin. In that case, the SCOTUS held that the President's military commission set up to deal with those fighting against the US was perfectly constitutional. It isn't a direct counterpoint. However, I think it at least puts your claim in a more questionable light, or rather it shows the limited precendential value of your decision.

So, if true. Under CAT, we would be importing our current distinctions in dealing with unlawful enemy combatants etc.... under those amendments courtesy of Ex Parte Quirin, etc.
12.16.2005 7:29pm
The Original TS (mail):
I guess I'm puzzled by what kind of torture would be prohibited by the 14th amendment but not by the 5th &8th Amendments.

This isn't the place to launch into a long discussion of incorporation but by suggesting that the 14th Amendment provides independent protection against torture, you're suggesting that the state governments can't constitutionally engage in any kind of torture but that the federal government can since it isn't bound by the 14th Amendment. I admit, I haven't researched the issue but I find this unlikely.
12.16.2005 9:16pm
SDOH:

...you're suggesting that the state governments can't constitutionally engage in any kind of torture but that the federal government can since it isn't bound by the 14th Amendment.

I don't think that either Medis or I are suggesting this. Rather, we're saying that the US Reservation to the CAT agrees that individuals are protected by the standards of treatment contained by the 8th, 5th, and 14th amendments. As borrowed standards of treatment, this has much more to do with the ways in which government (whether national or state) is limited when dealing with individuals, and very little to do with federalism. (We aren't dealing with whether a standard of treatment applies to the states, but what standard of treatment the US has agreed to as a CAT party.)


I guess I'm puzzled by what kind of torture would be prohibited by the 14th amendment but not by the 5th &8th Amendments.


The 8th amendment proscribes different treatment than does the DP clauses of the 5th or 14th amendments. (I believe.) Although DP may exclude confessions which result from hard (though not tortuous) slaps (whether from federal or state officers), I am not sure that the 8th amendment would prohibit a government from legislating hard slaps as the punishment for a crime.
12.19.2005 12:22pm
The Original TS (mail):
Rather, we're saying that the US Reservation to the CAT agrees that individuals are protected by the standards of treatment contained by the 8th, 5th, and 14th amendments.

But that's my point. IIRC, the 14th Amendment doesn't contain any "standards of treatment." All it does is make the "standards of treatment" in the rest of the Constitution applicable to the states.

To put it another way, the 5th Amendment contains a due process clause. All the 14th Amendment does here is say "Now all you states have to give people 5th Amendment due process rights too!"

I think referring to the 14th Amendment is a bit of a red herring. The 14th Amendment is all about "jurisdictional limits" and contains no independent "standards of treatment."
12.19.2005 1:53pm
SDOH:

All the 14th Amendment does here is say "Now all you states have to give people 5th Amendment due process rights too!"


It doesn't. Not to be a jerk, but it's text states that:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The 14th undoubtedly incorporates (some) provisions of the bill of rights to the states, but I do not think that its power is constrained to this purpose. (also seen, e.g. by Sct 2-4.)

Thought experiment: The 5th amendment DP clause is repealed. (Or has never been written.) Does the 14th amendment DP clause contain a substantive standard of treatment, or has it vanished?

The 14th amendment DP clause would continue to have its own weight (I would think), even if the 5th were a figment of our imagination.
12.19.2005 8:03pm
The Original TS (mail):
The 14th undoubtedly incorporates (some) provisions of the bill of rights to the states, but I do not think that its power is constrained to this purpose. (also seen, e.g. by Sct 2-4.)

Undoubtedly, indeed. But, as I indicated before, I was trying to avoid a detailed discussion of incorporation.

I am, of course, aware, that my language was just a paraphrase of the actual text. But that's essentially what it does. The 5th Amendment Due Process guarantee even encompasses equal protection -- otherwise the feds could discriminate but not the states. The operative words of the due process guarantees in the 5th &14th Amendments are identical. Why shouldn't they be interpreted identically?

Look, let's make this easy. Is there some bit of due process that the states have to provide because of the 14th Amendment that the Feds don't under ther 5th? While I can't think of any, there may be something and I'd be genuinely interested to know what it is.
12.19.2005 9:29pm
SDOH:

The operative words of the due process guarantees in the 5th &14th Amendments are identical. Why shouldn't they be interpreted identically?

I don't think we're actually arguing about anything. Like you, I think that incorporation is beside the point: I believe that the Reservation's citation of the 14th has nothing to do with federalism, but with the standard of treatment borrowed. Yes, the treatment substantively proscribed by DP is the same under the 5th and 14th. One seeking to borrow a standard of treatment does not have to choose between the 5th or the 14th given that they both refer to the same standard of treatment; and given the purposes of the CAT, the borrowing both is best interpeted to refer to the same standard of treatment rather than anything having to do with federalism.
12.20.2005 1:49pm
The Original TS (mail):
Fair enough, SDOH. I think the real answer is that the person who drafted the language was kind of fuzzy on con law!
12.20.2005 6:11pm