John Hinderaker notes that the President has submitted legislation that would attempt to bring greater legal clarity to the standards of the Geneva Convention, by equating them with the standards set forth in the McCain-sponsored Detainee Treatment Act of 2005. Those standards prohibit cruel and unusual punishment as defined by the Eighth Amendment, and treatment that “shocks the conscience” as defined by the Due Process Clause of the Fifth Amendment (both applicable to the states through the Fourteenth Amendment).
This standard would appear to provide interrogators with real guidance, because there is a substantial body of law that has built up over time interpreting these standards under the U.S. Constitution.
What is wrong with that? Hinderaker notes that the standard was good enough for McCain, Lindsey Graham, and the New York Times when the DTA was initially proposed last year. Hinderaker expresses bafflement at what has changed to cause these folks to change their minds now, and in a related post, he extends an invitation to McCain to explain:
I want to close with an invitation to Senator McCain. This is a complicated subject in which I am not an expert. So, if you or your staffers can offer some reason why your position on the administration’s bill makes sense, and is not merely a self-contradictory effort to curry favor with the press in anticipation of your 2008 Presidential campaign, please send it to us. We will be happy to publish any explanation you can supply.
I don’t think John McCain will be appearing on the pages of this blog, but I’d like to throw this question open to my readers — especially the lefties. Like Hinderaker, I am not an expert in this area. Lefties, you have a unique opportunity here. Rather than furiously tapping out bursts of self-righteous indignation against righties, why not educate us, by explaining why this standard is unacceptable now, when it seemed acceptable to McCain et al. before?
The best post I have been able to find explaining opposition to the Bush proposal is this one by Marty Lederman. Lederman says that the issue is not playing the Red Hot Chili Peppers at high volume.
Nor — contrary to the Administration and to many press accounts — is it primarily about the meaning of Geneva’s prohibition on “outrages against human dignity,” and “humiliating and degrading treatment.”
Rather, Lederman says, that the techniques at issue are these:
— “Cold Cell,” or hypothermia, where a prisoner is left to stand naked in a cell kept near 50 degrees, during which he is doused with cold water.
— “Long Time Standing,” in which a prisoner is forced to stand, handcuffed and with his feet shackled to an eye bolt in the floor for more than 40 hours.
— Other forms of “stress positions” and prolonged sleep deprivation, perhaps akin to “Long Time Standing.”
— Threats of violence and death of a detainee and/or his family.
According to Lederman, the use of these techniques has been widely reported, and the Administration has “resolutely refused to disclaim any of these reported techniques, and so I think it’s fair for Congress and the public to assume, absent contrary evidence, that these are among the techniques at issue in the current debate.”
Maybe, and maybe not. This seems intimately related to the question of whether the four techniques that Lederman says are at issue (cold cell, long time standing, stress positions, and threats) violate the constitutional standards set by the DTA, that are part of the Administration’s current proposal. If they do, then the debate must be about something else, right? And that “something else” would be the meaning of “outrages against human dignity,” and “humiliating and degrading treatment.”
So do these four techniques “shock the conscience”? Are they cruel and unusual punishment? My answer is: it depends. My layman’s view is that, in many cases, the worst of these techniques would violate the proposed standards — but a limited use of such techniques with a high-value and knowledgeable operative like Khalid Shaikh Mohammed (KSM) might not.
If reports of our treatment of prisoners in the secret prisons is any measure, the Administration may be concerned about both 1) humiliation and 2) the ability to use some more coercive techniques (as described by Lederman) in limited circumstances, against high-value detainees like KSM or Abu Zubaydah.
For example, in a very important post, See Dubya explained that high-value target Abu Zubaydah was “stripped, held in an icy room and jarred by earsplittingly loud music.” The “icy room” bit appears to resemble the “cold cell” technique that Lederman describes, and it would concern me to use that routinely; according to reports “Mr. Zubaydah seemed to turn blue” at times. But if we received information as a result of such interrogation techniques that stopped a major terrorist attack that would kill thousands of people, I think it would be worth it. Don’t you?
The slippery slope concerns are real. The issues about our standing in the world are real. But so are the concerns about getting good information.
If you glibly discount that possibility by referring to the Army’s position, you’re dodging the issue. The Administration says it has gotten good information from KSM, and it is fighting hard to use somewhat coercive techniques in the face of widespread opposition. Do you really think that’s purely because they are cynical or evil? OK: you’re entitled to your beliefs, but if this is your argument, I am going to discount your opinion accordingly as that of a partisan hack.
And (as I have said before) if coercive techniques don’t get us good information, I would think that would quickly become evident, and the Administration would stop using them for that reason alone.
It’s not an easy question. I’m looking for serious discussion from serious people. (AMac, are you around?) And so I throw it open for discussion.
In the extended entry, I quote the legal standards that apply, so you can see how the Administration’s proposal leads to standards under the U.S. Constitution.