Tuesday, October 18, 2005

Is McCain Amendment a Step Backwards?

Ian Fishback's open letter to Senator John McCain cried out for clear rules on detainee interrogation. He wrote:
"For 17 months, I tried to determine what specific standards governed the treatment of detainees by consulting my chain of command .... Instead of resolving my concerns, the approach for clarification process leaves me deeply troubled. Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq."
Senator McCain responded to this letter with the "McCain Amendment" which he argued was necessary because our soldiers were crying out for clear rules:
"I can understand why some administration lawyers might want ambiguity, so that every hypothetical option is theoretically open, even those the President has said he does not want to exercise. But war does not occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty, we cannot hide our heads, pulling bills from the floor and avoiding votes. We owe it to our soldiers, during this time of war, to take a stand."
Marty Lederman over at Balkinization has an interesting post now arguing that the McCain Amendment as amended by Senator Ted Stevens may actually be a step backwards. Lederman argues that:

"if the Congress enacts the Amendment as so limited, it will be a major step backwards from where the law currently stands. This can't be overemphasized: If Stevens is successful at adding his seemingly innocuous "augment[ation]," it would make the law worse than it currently is... [I]f Senator Stevens has his way, and successfully exempts the CIA from the McCain Amendment's otherwise unequivocal ban on cruel, inhuman and degrading treatment, the Congress will for the first time have ratified the Administration's view that such cruel, inhuman and degrading treatment is not uniformly off-limits, and will have given a green light to the CIA to engage in such conduct. Moreover, as explained above, that very unfortunate result would not be offset by any meaningful improvement in the law as it applies to the Armed Forces."
Meanwhile, Jon Holdaway, a former JAG officer over at Intel-Dump, objects to the McCain Amendment for a completely different reason:

"I would support an amendment that directed the military to create rules to protect detainees from such treatment, or which strengthens provisions of the Uniform Code of Military Justice to make such treatment specifically a criminal act (ie., add it to Article 93, Cruelty and Maltreatment). Putting the mandate in broad terms with the directive for DOD to create implementing policies and instructions, followed up by Congressional oversight gives the military much more flexibility to respond to the unique challenges posed by radical or fundamentalist Islamic detainees. A prohibitive statute such as this one, however, which tries to micromanage interrogations from Capitol Hill, is a mistake that will result in years of litigation, poor intelligence, and wasted opportunities to save lives."

Both Lederman and Holdaway think the McCain Amendment that may eventually become law is a step backwards, but for very different reasons.

What is fascinating in this debate over detainee interrogation is the larger debate over the role of Congress and the Executive branch on what is essentially an administrative law question: whether Congress shall impose strict rules or general guidance on how an agency of the Executive branch conducts its affairs. The general approach of our administrative state is one of broad grant of authority from the legislative branch and trust in agency expertise to carry out the congressional mandate. The McCain Amendment appears to be one of those instances in which the legislative branch is stepping in because it now lacks confidence in the agency to exercise its expertise.

But of course, as anyone who has studied the Eighth Amendment or the Torture Convention in any detail well knows, precisely what terms like "cruel or unusual punishment," or "cruel, inhuman, or degrading" treatment is an exceedingly difficult question. If we apply an administrative law gloss to the McCain Amendment, what are we to do if executive agencies interpret those words broadly or narrowly? Courts likely will defer to agency interpretations of what is "cruel, inhuman, or degrading" treatment. Hence the McCain Amendment may not have particularly cabined executive authority in any significant way. Administrative law principles will blunt any major impact it might otherwise have.

I am curious if others have thoughts on whether this administrative law gloss on the McCain Amendment is correct.

Related links:
What Congress Has Done and Not Done to Limit Inhumane Treatment
Congress Speaks--Defining Detainee Interrogation Policies


Blogger Marty Lederman said...

Roger: I most definitely do *not* think that the McCain Amendment would be a "step backwards." The Stevens *amendment* to the McCain Amendment would be a major step backwards.

Indeed, the McCain Amendment's principal clarification -- that the ban on cruel, inhuman and degrading treatment applies extraterritorially, contrary to DOJ's recent understanding -- is *precisely* what I proposed back in January as a worthwhile start at a legislative solution: http://balkin.blogspot.com/2005/01/more-responses-from-judge-gonzales.htmlstartprohibition on

This is what I wrote then, and it continues to apply now: "This would not resolve all definitional ambiguity. There remains some uncertainty about just which forms of conduct 'shock the conscience' for purposes of the Due Process Clause. But there is an established and developing body of judicial case law on this question, and such an evolving constitutional doctrine could guide the interpretation of the statute I propose. The basic premise of the statute would be a simple one: The standards for treatment of a detainee should not turn on whether the United States decides to transport the detainee to Guantanamo, or to a secret foreign CIA facility, rather than to Puerto Rico or to South Carolina."

Would the amendment provide all the necessary guidance? No, it wouldn't. But it *would* cause the CIA to balk at some of the more extreme techniques that it reportedly has used, including waterboarding and mock burial, and it would render untenable any argument that *intentionally* degrading and humiliating treatment -- such as what the military did to al-Qahtani at GTMO -- is consistent with U.S. law.

10/18/2005 12:23 PM  
Blogger Roger Alford said...

Thanks Marty. My post was intended to indicate that you view the McCain Amendment as amended by Ted Stevens to be a step backwards. I did not read your post or intend to suggest that you view the original McCain Amendment as a step backwards. Thanks for your clarification.

Roger Alford

10/18/2005 1:22 PM  
Blogger Ben Davis said...

The amendment is a step forward, however, whether from an administrative law point of view or other point of view, the fundamental difficulty is that at the federal level we are simply too ill-equipped to prosecute those who are perfectly willing to create strategy and/or planning to enable such depravity. Maybe some low level enlisted person will be prosecuted subsequently, but the problem that McCain does not get to is the problem of criminal prosecution of higher ups that create the environment. Our system is completely broken on this and it is so broken because we have wanted it to be that way or could not imagine that depravity would be countenanced by our leadership.

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