21 Jul The Future of Enhanced Interrogation Techniques and A Separation of Powers Question
On July 20, 2007, President Bush signed an Executive Order fulfilling the requirements of the Military Commissions Act (MCA) that he provide interpretations of the “meaning and application of the Geneva Conventions . . . for violations of treaty obligations which are not grave breaches of the Geneva Conventions.” Here are the most relevant portions of that EO —
b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3 [of the Geneva Conventions], provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual;
* * *
(iii) the interrogation practices are determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used; and
(iv) detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.
Over at Balkinization, Marty Lederman offers a severe critique of the EO as cryptic, uninformative and an example of “hide-the-ball lawmaking.” I’m interested in what our readers think — what effect, if any, will this EO have? Does it clarify the vague terms of Common Article 3 of the Geneva Conventions, as the White House suggests? On the one hand, it would seem to clearly prohibit under Common Article 3 the types of sexual and religious-based interrogation practices that generated so much earlier controversy. More open to question is just what the language about “protection from extremes of heat and cold” means with respect to temperature controls. Does it prohibit the induction of hypothermia, but allow less “extreme” conditions during interrogations? And, does the EO mean to suggest in leaving out references that might encompass sleep deprivation or waterboarding that those techniques do not violate Common Article 3?
A separate question that I have involves the constitutionality of the MCA provision that generated today’s EO. MCA Section 6(a)(3)(A) states, “[a]s provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Convention.” Now, I’ve always accepted that the President should get some (perhaps even significant) deference in interpreting treaties (although that belief can be sorely tested at times in individual instances) particularly given the President’s plenary power to decide when and how to conclude treaty commitments for the United States. But, the quoted MCA language goes beyond deference to suggest the President decides what the treaty means definitively (i.e., his word is the law). I’m not sure his powers under the Constitution–whether the treaty power, the power to enforce the laws, or the more nebulous foreign affairs power–involve such an authority. Nor is it clear to me that this is an authority that Congress can give the President. Assuming you can separate out treaty-making from treaty-interpretation in the same manner as we separate law-making from statutory interpretation, doesn’t the Court get the last word on what the treaty means? Of course, the Court could (and might) cede the field on this point–much as they’ve done on federalism–letting the Executive self-interpret the treaty’s meaning, particularly given Congressional support for that approach. But, Judge Roberts makes me wonder if that is the only possible outcome. After all, albeit in the slightly different context of Sanchez-Llamas, Judge Roberts’s Opinion for the Court states that “If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the Constitution.”
The EO is purposely cryptic. You can’t tell the enemy exactly what will happen to them if they are captured. If they know what to expect when captured, they’ll never break regardless of what is done. Interrogation is one big head game.
Nobody doubts that when the Supreme Court renders a decision it is the final word. When the Court has not spoken, however, the President must interpret laws and treaties when making rules for the Executive. Under the Constitution, Congress has the authority to make rules concerning “Captures”. The MCA should be read as a transfer of authority from Congress to the President to make these particular rules, not as an attempt by Congress to close out interpretation by the Court should a case arise. The text says the President has authority, not exclusive authority, to interpret.
As you no doubt expect, I have a very extensive critique of the Executive Order that has been submitted on Friday as an op-ed. If it is published, I will not fail to repost it here.
Best,
Ben
This is just a another page in the familiar David Addington / John Yoo / Paul Clement book of corruption — and another signed confession of war crimes.
We need to prosecute these people.
Until the courts have issued an opinion on the interpretation matter at hand, isn’t it always within the authority of the Executive?
Obviously, someone must make a judgment about what any given treaty says if it is to be enforced. I would argue this belongs to the Executive, until the Judiciary rules they are incorrect.