The New York Times's Adam Liptak today (Saturday, September 23, 2006) quotes Human Rights Watch's Jennifer Daskal, (behind the Wall):
"The McCain, Graham, Warner trio really fought back and prevented the administration from winning its effort to reinterpret Common Article 3." Liptak adds, paraphrasing Daskal, that the "proposed law, at least if it is interpreted honestly ... would prohibit interrogation techniques like sleep deprivation, forced standing for long periods and extreme temperatures."
But of course the administration has said exactly the opposite, and so for that matter have sources close to McCain, Warner, and Graham (see the Byron York article in the previous posts). So have various liberal commentators (see eg Balkinization).
Much of course depends on what you mean by "at least if it is interpreted honestly." And thus the fundamental problem with a compromise that achieves its aims by general language that papers over and obscures differences. The differences resurface, sooner or later, sometimes worse they were originally. Sometimes papering over differences is a good idea - saves lives, saves face. But other times it simply postpones the conflict, which resurges at compound interest. In a democracy, face-saving compromises that leave key terms unresolved and undefined are generally a bad idea.
The detainee compromise, let me be clear, was better than I thought it would be. I'm in favor of it, on balance. But, still, it invites spin and resurrects legal uncertainty because it refused to be as specific as it should have been. I understand - or more exactly, I don't understand, because understanding Congress eludes me - the necessities of artful obfuscation that successful negotiations often require. But specificity and transparency are essential to the central issue here of democratic legitimacy for controversial actions and methods that deeply divide the public over fundamental liberal values of safety and liberty. What techniques exactly and in detail are permitted in interrogation? It should have addressed specifically waterboarding, cold rooms, standing for long periods - all the things that Daskal says are not permitted but lots of other people say they are.
- Yes, the executive "interprets" treaties, not Congress.
- Still, Congress can pass any law it likes as a matter of domestic law and achieve functionally the same result as interpreting a treaty, simply because our constitutional system operates on a 'last in time' rule.
- I share the concern that the US not simply "define down" its treaty obligations by passing statutes for domestic law purposes that say, in effect, where the treaty says "white," for domestic law purposes "white" means "black"; the US has an obligation to conform its domestic law executing the treaty in ways consistent with the treaty.
- Courts of the United States, unlike many countries, however, generally lack the ability to strike down a statute passed by Congress, even if it arguably and even if in the view of the court it puts the United States in violation of its treaty obligations; it is a power of sovereignty, wise or unwise, just or unjust, prudent or imprudent, for the political branches of government to violate international law if they determine to do so.
- Terms of a treaty article, such as Common Article 3 - "degrading" treatment, for example - are vague, and not sufficiently specific to support legal liability, particularly criminal liability, without further interpretation and guidance; otherwise, the application of such terms fail the elementary test of the rule of law because, without greater specification, they do not make plain what is legally permitted and what is legally prohibited. Rights groups such as the ACLU or HRW would not hesitate to assert void for vagueness, lack of specificity inconsistent with the rule of law - because a reasonable person could not know in advance that conduct was legally punishable - faced with such language where, for example, it was asserted by some nasty regime, Belarus or Uzbekistan, or in the case of some US law law that might penalize someone the ACLU wants to defend.
- It is perfectly okay for a domestic legal system, in good faith and consistent with the treaty, to supply specificity for purposes of imposing legal liability, on treaty terms such as "degrading" treatment; people may argue about whether the domestic law interpretation is a fair one, but the very fact of supplying an interpretation is not per se prohibited, and indeed is often regarded as showing a state's enthusiasm and support for a treaty. The question is whether the supplied domestic law is consistent or not with the treaty.
- Treaty terms will be interpreted, if by no one else than a judge having to determine whether to impose liability.
- It would be better, in a democratic system - required, one might hope, in ours - however, that vagueness (really, the problem of specificity under the rule of law, as a precondition for imposing liability) were first addressed by the legislature rather than a judge making it up as he or she goes along and, worse, imposing liability on an interpretation given after the fact, when it is least fair. Rights groups often prefer to cut the legislature out of the process, out of a general mistrust of democracy and out of a fundamentally elitist bet that elite lawyer groups can work a better deal for themselves dealing with a judge and not the legislature - the history, one might say, of the ACLU and other such groups. The same is true in legal systems in which treaty obligations rank above mere statutes passed by the legislature - it makes reasonably good sense in that case for the legislature not to have a role once past ratification; it really is a question of judicial interpretation. Rights groups often act as though the US system were like those Continental systems, seemingly on a theory that it you act as though it is that way, you might convince a judge to make it so.
- Even though there is a kind of scholastic difference - discernible, frankly, only to strong partisans of executive power theories - between Congress impermissibly "interpreting" a treaty and Congress passing a 'last in time' statute that simply does what it likes, in practical terms they reach the same result. So that aspect of the compromise does not really appear all that meaningful in practical terms, though no doubt it means a lot to certain parties.
- What matters in the compromise is who gets to define what. Congress gets to define the grave breaches - the big nine (they are: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, rape, causing serious bodily injury, and sexual assault or abuse, and taking hostages). Of them, "cruel or inhuman treatment" is most vague; torture is the next most vague; and the rest are reasonably specific.
- But the whole compromise exercise is largely back to square one unless Congress is willing to be specific about what exactly constitutes torture, what exactly constitutes "cruel or inhuman treatment." Is HRW's Jennifer Daskal right, and cold rooms and sleep deprivation are prohibited as grave breaches under the compromise? Or is Stephen Hadley right and these are okay? What about waterboarding?
- The process of defining grave breaches under under the War Crimes Act (meaning, informally tracking Common Article Three, but by means of a domestic statute, the War Crimes Act, that avoids formally saying it is interpreting or defining Common Article Three) is not done until specific interrogation techniques under grave breaches are defined by Congress and voted on by a raise of hands. Otherwise, the same endless debate - charges of bad faith, dishonesty, and for that matter, uncertainties over the legal status of CIA and other US officials, will not be settled.
- Does anyone think for a moment that rights groups and hitherto largely silent liberal and left groups, in the United States and abroad, will not insist, as soon as someone is subjected to sleep deprivation, that the US agents involved have committed war crimes? And lacking a definitive answer from Congress, embedded in legislation, the argument will never end. Why exactly do the negotiators of the compromise believe that the participants in the interrogation program are now free of concern about liability? Because the compromise prohibits private actions in US courts - there are non-US courts, and there is always the possibility of another Justice Department down the road that thinks differently about things? If I were a CIA agent, I would feel somewhat protected, but not completely.
- More importantly, really, if Congress does not give specific, casuistical definition to grave breaches - actual practices, yes or no, by whom to whom - it will have failed in the most basic problem of all - the fact that in a polity deeply divided over these issues of the conflict of values, safety and civil liberties, where the people are deeply divided over the substantive answers, a democracy must fall back on democratic process to provide a clear answer.
- As for the administration, it defines - that is, it "interprets," getting formalistic - the less than grave breaches of the treaty, of Common Article Three, both what they are and consequences for violation. It is good that the administration's characterizations of techniques must be published in the Federal Register so that they can be known and debated. It would be even better, as Jonathan Rauch has urged, that the executive be required to report publicly, from time to time, on exactly what has happened - when and under what circumstances have such techniques been used. But it would be better if the administration were to have the specific sign-off of Congress on its "alternative" techniques - and I say this because I support the availability of these alternative techniques. The more controversial the technique, the greater the need for the legitimacy that can only be provided by the democratic process of the legislature.
The compromise is thus less than it seems precisely because, as Byron York says, the devil is in the definitions, both those made by Congress and those made by the administration - or, more precisely, the possible (likely?) failure of those institutions to offer clear and specific definitions.