Panel 2: Detention/ Rendition/ Interrogation/ Defining Torture

Memo to participants on the second panel of conference on Legislating the War on Terror, Monday, April 10:

***
In the first panel of this conference, we debate the question of whether and to what extent the war on terror, over the long run, should be conducted under the legal authority of the president, the president's executive power, or instead under legislation enacted by Congress, and moreover what is the appropriate role for the courts. In panels 2 and 3, however, we assume that, on whatever grounds, we have concluded that Congress should legislate in various areas.

There are many areas in which Congress could, and of course has already, legislated - terrorism and financing, the McCain amendment, etc. There are also many issues of great controversy, in the debate between security and civil liberties - having limited time on the program - and we have selected two that have seemed important and controversial, detention/interrogation issues and, in panel 3, use of force issues. There are, of course, many more - surveillance, proposals for special terrorism courts, etc. But we've limited ourselves to these two.

In panel 2, the idea is to ask what legislation Congress should enact - the substantive standards and procedural structures of review - with regards to detention (including rendition), on the one hand, and interrogation (including what is acceptable and not acceptable, and what crosses the legal line into torture which, pace Dershowitz, we will assume always to be illegal). So for each of these basic areas of custody - threshhold for detaining someone, conditions and duration of detention, conditions for release from detention, interrogation practices, the line dividing permissible interrogation from torture - I would ask you to discuss the substantive standards that should be enacted by Congress, and the procedural structures that Congress should impose, such as recourse to courts or other review, on detention and interrogation. I put that very much in the abstract, in order to accommodate what I suspect are a wide range of views on this.

In the detention area, consider the following questions, although please feel free to introduce others:

Does it make any difference to your views on the particular issues here whether you conceive of all or parts of the war on terror as "war" or as something else, such as "criminal law enforcement"?

What grounds should legislation provide for the US to have in detaining various legal categories of people - foreign fighters on the battlefield, US citizens on a foreign battlefield, US citizens abroad, US citizens in the US? If the war on terror is conceived as a war, what difference does duration of detention make? If it is conceived as criminal law enforcement, is the answer different?

Do differences in the possible time that detainees might be held - short term for days or weeks, months, or long term - years or possibly even forever - make a difference to the kinds of grounds legislated for holding people?

What should the standards for rendition to another state be - should they be the same substantive standard as for the US holding the person, or should it be different? (This involves both the question of grounds for detaining the person in the first place as well as custodial treatment.)

Should one look to the law of war, US constitutional standards, international human rights standards, or something else to establish a legislative base line for the act of detention as well as conditions of custody? In drafting legislation, what other legal regimes might one consider to find a source of standards?

What procedural measures for review and appeal should be created by legislation? Should Congress provide a statutory regime for military commissions, should these cases be moved into US courts, and what should be the role of habeas corpus?

Should the Congress create some kind of special terrorism court system to deal with these cases with special forms of evidence, secrecy, and review?

In matters of interrogation, what should be legal standard for permissible interrogation? How does one go about defining torture in concrete ways that give genuine guidance to interrogators and those reviewing their actions?

Is the McCain amendment enough (or too much)?

Should Congress mandate the application of the language of Common Article 3 as the measure of custodial treatment, in interrogation as well as other settings? Is that because it is required by international law, or is it a matter of Congress believing that it would provide the appropriate standard?

Should the level of permissible "aggressive" or "coercive" or "harsh" interrogation - still legally short of torture - vary, meaning increase, depending on the level of knowledge of who the person being interrogated is? In other words, if you know with 100% certainty that you are interrogating Zarqawi, does that allow a greater amount of coercion short of the legal definition of torture than would be the case for someone about whom one knew nothing?

When HRW's Ken Roth says that "vigorous" questioning of terrorist suspects is permissible, what does that mean concretely? Specifically, does it allow anything other than what the Geneva Conventions would already permit to be done to a bona fide POW?