Gut Check

Marty Lederman details just how the administration is pushing to gut the recent Hamdan ruling that even terror suspects are protected by some Geneva provisions. He explains how the McCain amdendment is but a paper tiger and how it's all connected:

[H]ere is how one report describes the CIA techniques of "Long Time Standing" and "Cold Cell":

Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

[A]pparently, the idea is to enact a statute that would allow such techniques, at least in certain circumstances. But how could Congress do that?

Graham indicated to the New York Times -- as did Administration officials -- that Congress could "limit" Common Article 3 "in a way that resembled the language of the [McCain Amendment]." Of course, as Graham concedes, this really wouldn't so much be "limiting" Common Article Three as gutting it, because, according to Graham himself, the restrictions of Common Article 3 go "well beyond the McCain standard."

How can that be?  After all, the McCain Amendment categorically prohibits all "cruel, inhuman and degrading treatment."  Well, as I've tried to explain, Congress has defined those terms under McCain to include only what the Due Process Clause would prohibit if the interrogation were taking place in the United States. That is to say, conduct that "shocks the conscience" -- a standard that the courts have never applied in the context of interrogations intended to elicit inforformation about future terrorist activity. As I feared, the Administration apparently has (if Graham's remarks are accurate) construed the McCain "shocks the conscience" test not to prohibit techniques such as sleep deprivation and "cold cell," i.e. hypothermia.

But Common Article 3 is not limited to "conscience-shocking" conduct, but instead prohibits all violence against detainees and "outrages upon personal dignity." CA3 therefore almost certainly does prohibit techniques such as cold cell, or prolonged sleep deprivation. 

The Graham/McCain/Administration initiative now being hatched thus would authorize the use of techniques that would violate the Geneva Conventions.

The NYT rightly  flagged the administration's  offensive new offensive. Let's hope others pick it up too.

Comments

[Lucas]

Once the game's over, Browns coach Eric Mangini and Patriots boss Bill Belichick will meet somewhere near the 50-yard line and face yet another of those painfully awkward moments with the whole football world watching.
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