(New Update – 10/28) (Part 2) Waterboarding the Fish: Stall Ball and Interagency Jedi Mind Tricks

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

John  Bellinger (Lawfareblog.com –http://www.lawfareblog.com/2014/10/the-convention-against-torture-extraterritorial-application-and-application-to-military-operations/), Beth van Schaak (Just Security.org http://justsecurity.org/16560/convention-torture/), and Jack Goldsmith (again at Lawfareblog.com – http://www.lawfareblog.com/2014/10/a-bit-more-on-the-debate-about-the-extraterritorial-scope-of-the-torture-conventions-provisions-on-cruelty/ ) have weighed in on the CAT and extraterritoriality. Charlie Savage has also been cranking out the articles (10/19, http://www.nytimes.com/2014/10/19/us/politics/obama-could-reaffirm-a-bush-era-reading-of-a-treaty-on-torture.html?_r=0, 10/26 – http://www.nytimes.com/2014/10/27/us/politics/peace-prize-laureates-urge-disclosure-on-us-torture.html) along with the New York Times Editorial of 10/20 – http://www.nytimes.com/2014/10/21/opinion/president-obama-and-the-convention-against-torture.html).

You would think there was a USGovernment interagency meeting this morning that the folks on the outside were trying to influence.

From these reports about the interagency process and the positions of State, Military and Intelligence, the consensus line of attack of the military and intelligence to CAT is the “effect on other treaties” of a US interpretation of jurisdiction that did not exclude what is called de facto jurisdiction.  The second line of attack more recently was a worry about unintended consequences on “military operations”.

Both of these efforts are trying to drown the fish in the sea (from noyer le poisson a French adage about efforts at misdirection, obfuscation, and side-tracking, or as I have come to call it waterboarding the fish) in an even bigger ocean.

(Second Update 10/28 In the spirit of Halloween in a Livestream presentation on October 28, 2014 (the link was at Just Security.org but the posting has disappeared – you can find a reference to it at https://its.law.nyu.edu/eventcalendar/index.cfm?fuseaction=main.detail&id=35395), Harold Hongju Koh referred to the three concepts at play in the flurry of exchange as the three bogeymen of  1) strict territorial application (jurisdiction, below), 2) complete displacement of human rights law by international humanitarian law in armed conflict (military operations, below), and 3) cascading (in Part 1 of these two posts).

On strict territorial application (jurisdiction) of the CAT,  he was of the view that the rest of the world simply does not accept that view.  On complete displacement (military operations) of the CAT, taking the example of religious belief, he said that human rights law remains present in armed conflict and is not completely displaced.  On cascading effects to other treaties by a position taken on the CAT, he said that each treaty has its own negotiating history and is taken on its own terms.  To think of some cascade of consequences from the USG decision on CAT to have extraterritorial application was absurd.)


A. Jurisdiction

This point may be too subtle for US foreign relations law types, but the CAT treaty language uses the word jurisdiction without a modifier of de facto or de jure in front of it.  That is the international obligation to which the United States has consented to be bound. As such, instead of being in international law, we are in the space of US foreign relations law interpretation in a manner inconsistent with the treaty language. The treaty text is the principal manner of interpreting a treaty as detailed in the Vienna Convention on Law of Treaties that – at least for a long time – was considered authoritative by the United States even if not signed on.  At the American Branch of the International Law Association this weekend, I understood that the approaches to treaties and the Vienna Convention on Law of Treaties have become degraded in the United States internal processes as the forces of massive resistance to international law attempt to push a reactionary line that is at least as old as the Bricker Amendment to human rights treaties.  So one can never be sure what U.S. foreign relations law gambit will be tried to push forward some notion of “flexibility.”  That is why it is important to remember the actual treaty language and the international law vision of that language when assessing the internal U.S. dynamics as we come toward a day of reckoning on what we have and have not done since the 2006 periodic review of the U.S. compliance with its obligations under the Convention Against Torture.

Now some would say that the U.S. foreign relations law gambits are appropriate – a sort of margin of appreciation line of attack – but if we left interpretation of the Torture Convention to those who have or want to torture we would end up with no peremptory norm. We should refrain from doing that from the point of view of international law but also from the point of view of the public trust of we Americans that we confide in our servitors of the State when they act on our behalf.

These points are not bureaucratic interagency Jedi CYA mind tricks. All in such meetings are servitors of the public and are to act to preserve that public trust in the institutions of government.

The de facto/de jure jurisdiction distinction is not about other treaties. It is about breaching the CAT through incorporating a very flawed DC Circuit distinction between de jure and defacto jurisdiction that tries to preserve areas of non-law for GITMO, Diego Garcia, rooms in facilities in servant states like Poland (Update 10-28 – Poland is appealing the Black Site rendition decision of the European Court of Human Rights – http://justsecurity.org/16755/poland-appeals-rendition-ruling/) as places of torture. It is about past manipulation of law to commit crimes and maintaining future space to manipulate law to commit crimes of torture.

Coupled with the stall ball on the release of the SSCI torture report, it is all about an effort by retrograde forces to keep themselves from accountability. Nothing more or less.

It demeans America and their offices that our public servants engage in this kind of small ball about a peremptory norm.

It also places our military soldiers in the unenviable position again of being asked to do bad things by suits (i.e. civilian leadership) and then – when the bad things come out as they inevitably do like Abu Ghraib – subjecting the soldiers to court-martial as they are at the bottom – not in the interagency Jedi mind trick gamespace. Sickening. Refluat Stercus

B. Military Operations

As the Article 16 gambit on extraterritoriality loses steam we can see the alternative gambit of unintended consequences on military operations being raised as a problem with the acceptance of the plenitude of CAT jurisdictional applicability.  There are at least three things that the uninitiated should understand about this.

First, the military operations meme is one that is used by the intelligence services as a way to seek to get their way by drawing on the popularity of the military in our system.  The “if you are against us, you are not supporting the troops” meme is one we have seen played over and over in these bureaucratic and political games.  It is aimed at freezing opposition and at garnering political support.  Particularly before an election, no elected official would want to be seen as “tying the military’s hands” or  “not supporting the troops.”  So those brave young men and women who bring tears of pride to your eyes when you see them are instrumentalized by the intelligence services for their nefarious ends.  We saw it in Abu Ghraib and Gitmo and we’ll see it again in the future.  So we should first understand that the full jurisdictional applicability of the CAT is about operations of the intelligence services notwithstanding the military operations language posited.

Now, the intelligence services have shown themselves over the past years as perfectly willing to torture people at the request of the President and – if caught – to let the military low level people take the heat and be court-martialed.  Our shadow report shows that.

So, we need to make sure that the full CAT jurisdiction is recognized for the intelligence overseas operations of torture to force them to confront that illegality when their leadership or the President attempts to task them with torture.  Maybe that is not wanted by the derring-do cowboys and cowgirls in that space, but so what?  They are given the chance to serve this country and that chance does not include torturing people in our name.  Even if the President wants them to do it.  For in such a setting, the President by definition is acting ultra vires.

Second, the military operations meme is also about a couple of complications that people have to understand.  Schematically the rendition, detention, and interrogation space can be viewed as the follows:

Rendition Detention Interrogation
Intelligence  XXXX XXXX  XXXX

To understand the concerns about the impact of the CAT on military operations one has to see those six boxes of operations in which a particular detainee might find themselves.

The first part of the argument being made is that international humanitarian law is the lex specialis and the CAT applies only in certain circumstances.  The displacing of the CAT in this line of argument is about – again – creating a space of lawlessness.

For example, during the War in Iraq in which the Geneva Conventions were said to apply, Jack Goldsmith wrote a memo when he was at OLC about the permissibility of transferring people out of Iraq (Rendition) for detention and interrogation.  Through some legal sophistry he was able to make a claim that such a transfer was not incompatible with the Geneva Conventions.  This memo was severely criticized in Jose E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT’L L. 175, 213 (2006) and other places for its severe misconstruing of the limitations of the Geneva Conventions.

If the Geneva Conventions and other international humanitarian law displace as the lex specialis the CAT as John Bellinger posits in his presentation above, then the effect is to leave in place the military operation of rendition to another country of someone in the theater of war.  Once in the foreign country, the effort at limiting CAT jurisdiction to only de jure jurisdiction kicks in to permit the local country to torture the person or, Americans in that local country in a hotel room or a remote barn, to torture the person as (so the argument would be run) they would not be in a de jure jurisdiction to which the US obligations under the CAT would be said to apply.  Some would say the Detainee Treatment Act of 2005 would  limit this, but of course that is only domestic law and maybe currently in some secret memo but certainly in a future time – with a scared Congress and a panicked Executive – artful language in a secret memo or law would be put in place to modify or reinterpret the Detainee Treatment Act of 2005 in a way that would seem obscure to the uninitiated but would reopen that loophole.  Can this happen?  Sure, we just saw it with the USA Patriot Act and its progeny.

(Update 10/28 – In preparing for the UN Committee Against Torture meeting next month, I was reading what the United States said back in 2006.  John Bellinger then is quoted as having said the following in the official minutes (the available version in French) :

5.     En ce qui concerne l’application du
droit des conflits armés aux opérations des États‑Unis en Afghanistan et en Iraq, M. Bellinger explique que les opérations de détention des États‑Unis en Afghanistan et en Iraq, ainsi qu’à Guantánamo, s’inscrivent dans le cadre d’un conflit armé, notamment contre Al-Qaida, ses groupes affiliés et ses partisans, et qu’à ce titre, elles sont régies par le droit des conflits armés, qui constitue la lex specialis applicable à ce type de situation. La Convention continue quant à elle de s’appliquer au traitement des détenus des prisons nationales américaines qui ne relèvent pas du droit des conflits armés. Quoiqu’il en soit, dans la mesure où la torture est interdite aussi bien par le droit des conflits armés que par les instruments relatifs aux
droits de l’homme tels que la Convention contre la torture, l’application du droit des conflits armés n’autorise en aucun cas les États‑Unis à commettre des actes de torture.”

In English, the detention operations in the armed conflicts are governed by international humanitarian law as the lex specialis  and the CAT applies to persons in US prisons.  Under either, the US cannot torture.  What this does not say is that the CAT applies in the armed conflict and extraterritorially (something John Bellinger is appearing to be saying at least in some circumstances now).  It makes a view of jurisdiction that is only to the territory of the United States for the CAT.  Also, what it does not address is the rendition or interrogation aspects of the three part rendition, detention, and interrogation apparatus.)

Maintaining the CAT jurisdictional applicability assures that the change of law domestically would be of no moment as an international law obligation on the United States as it would be internal law.  While we do have the last in time rule domestically , we also have the rule of international law noted in our Third Restatement of Foreign Relations Law (and hopefully not eliminated in the drafting of the Fourth Restatement), the Vienna Convention on the Law of Treaties and the draft Rules on State Responsibility that no state can extract itself from its international obligations through its domestic law.  This is bedrock international law that everyone in the field knows.

So the first part of the military operations canard is to allow military renditions to places where because of so called de jure jurisdiction only, detainees could be tortured or subject to cruel inhuman or degrading treatment.  This is not what the CAT permits, but the lex specialis argument allows that transfer to be done though the misinterpreted Geneva Conventions that is said to replace the prohibitions of the CAT.  Pretty artful, no?  Pretty sick.

A second aspect of this military operations canard is the idea of detention.  One of the key efforts done in the 2005 Stephen Bradbury memos and most likely in all the Yoo memos earlier and advice given was to examine when techniques were proper AS A MATTER OF DETENTION TECHNIQUES and when techniques were proper AS A MATTER OF INTERROGATION TECHNIQUES.  One of the favorite methods of getting away with torture and cruel inhuman and degrading treatment was to have it countenanced as an interrogation technique.  Then, when the Torture memos were revealed or Common Article 3 was said to apply in Gitmo, then the US Government could stop that technique AS AN INTERROGATION TECHNIQUE.  However, that same technique might be used on the same detainee in any event.  This time, however, it would not be pursuant to an interrogation chain of command, but pursuant to a detention chain of command.  If one is high enough up, then one can switch or mix techniques in between the two categories to one’s complete pleasure in  order to cause the detainee to suffer the treatment.  By classifying the detention as a military operation and having international humanitarian law displace as lex specialis the CAT, then one can have one’s cake (using the technique on the detainee) and eat it too (not be liable for a CAT or international humanitarian law obligation as one is not interrogating but one is merely “detaining”) violation. And there are able lawyers perfectly willing to write bastardized analyses to get you there.  Again, having the CAT apply in all circumstances and in all places of US jurisdiction obviates such kinds of games.

This and nine other false claims from the Bush era are unpacked and dismantled in more detail in Jordan Paust’s Barry Law Review article at http://ssrn.com/abstract=1989099.

C. On lawyering in the government

In 2006 when I led the effort in the American Society of International Law to pass the Centennial Resolution on the Laws of War and Detainee Treatment (http://www.asil.org/insights/volume/10/issue/12/asil-centennial-annual-meeting-adopts-resolution-use-armed-force-and) – only the 8th Resolution in its history, I met many headwinds.  At the Executive Council meeting one of the lines of attack against a resolution being done was that it would weaken the hand of people within the government who were countering the persons who were torturing.  John Bellinger was mentioned to me as one of those persons with his work by then as Legal Advisor at State.

Thus, as I have worked on the 2014 UN Committee Against Torture review, I have come to learn more about John’s role at the 2006 review of the United States by the UN Committee Against Torture.  John even comes back to it in his posting cited above. In my work with Civil Society people on the current 2014 review, the comments of those who were there from Civil Society then have been one’s of dismay with how the 2006 “put the best face on” US delegation presentation was done.

Now, with John Rizzo’s Company Man out (2014), John Rizzo describes the early parts of the interrogation techniques legal memo process as a meeting John Rizzo had at the White House with John Bellinger and others when he was on the legal staff of the National Security Advisor Condoleezza Rice.

“I wanted John in the loop from the beginning on the EITs for several reasons.  First, since George Tenet had indicated he was going to let his boss, Condi Rice, know about the issue, I thought that as a professional courtesy John should know as well.  Second, I knew that he was hurt and frustrated that the White House had cut him out of internal legal deliberations in the early days after 9/11, possibly because of tensions between him and Vice President Cheney’s chief legal advisor, David Addington (another guy I had met when he was a young lawyer at the CIA in the 1980s, and for whom I had great respect and affection).  Finally, and most important, I wanted as many lawyers as possible in the government’s national security establishment to be aware of the EITs from the get-go, to the extent the extreme sensitivity of the matter would allow.  DOJ involvement was essential to protect the Agency, but I wanted White House lawyers in the boat, too.  And I knew that John Bellinger, both for his own protection and because he was a good soldier, would  be sure to bring Addington and the White House counsel, Al Gonzales, along as well.  We would all be in this together, for better or worse.

After I gave him a brief overview of the impasse with Zubaydah and the proposed interrogation techniques the CIA was considering, John quickly set up a meeting in his office on April 16 (2002) with John Yoo, the number two guy in the OLC (Office of Legal Counsel), and Mike Chertoff, head of the Justice Department’s Criminal Division.” Pages 189-190

The rest of the chapter is well worth a read in naming many of the names from the inception of the torture program.

It is well worth a read to understand that the analyses we are being asked to follow by John Bellinger and  Jack Goldsmith cannot be seen in any sense as disinterested in these matters.  Nor can the whisperings one suspects of John Brennan around the White House as part of the game of stall ball and as part of the White House weighing in on the CAT review through the USG Interagency Process.

From what I read in the books and articles and documents, they are certainly witnesses to the crime of torture in the Bush regime with whom any prosecutor worth his or her salt would want to talk.

Thus, a grain of salt should be part of one’s appreciation of these efforts to waterboard the fish by reinterpreting CAT jurisdiction on the de facto/de jure distinction, on the military operations meme, or on any other new idea that very bright but wrong persons may present to the reader.