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Monday, November 21, 2005

More on Coercive Interrogation

Marty Lederman responds to my recent post on "Coercive Interrogation" with this:

I'm looking forward to reading Professor O'Connell's paper, but because I'm pressed for time, I've barely had a chance to glance at it.  With that major caveat in mind, these are my quick and tentative reactions to your question:

1.  The Third (Prisoner of War) Geneva Convention does prohibit all coercive interrogation of persons entitled to be treated as POWs.  Indeed, Article 17 goes further than that:  It prohibits all coercive, unpleasant and disadvantageous treatment of POWs: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”  The thought behind this -- derived from our own Lieber Code -- is that states warring with one another should not be trying to have one anothers' soldiers betray their comrades, at allIt's a grave moral sin to betray one's nation -- and neither side in a dispute should be attempting to breach that moral norm, or to induce others to do so.  Obviously, no one even recalls this norm today, let alone acts in accord with it -- it seems woefully anachronistic and/or naive.  (A topic for further research -- how did this notion disappear so quickly between 1949 and the mid-1960's?)

2.  The governing (for now) Army Field Manual, No. 34-52, that has been in effect for decades, purports to apply the "no coercion; no disadvantageous treatment" Geneva standard for our military's treatment of prisoners -- although it's very interesting that the Manual approves of many techniques that seem to allow disadvantageous treatment, at the very least.  (This is a complex topic, also for further research -- Why did anyone ever think that the Field Manual strictly complied with Geneva Article 17?)

3.  In any event, the Administration is applying techniques to AQ detainees that are not permitted by the Field Manual, and that would clearly violate Geneva Article 17.  Indeed, as I try to explain in a post today -- http://balkin.blogspot.com/2005/11/cia-enhanced-interrogation-techniques.html -- it's difficult to understand why some of the techniques are not plainly criminal torture or assault, although presumably OLC has come up with a legal rationale why they are not.
Why does the Administration believe that it can ignore Article 17's prohibition on any coercion?  Because it takes the view that Al Qaeda detainees are categorically not POWs.  But raises lots of tricky treaty questions, such as:  Does Geneva III apply to our conflict with Al Qaeda at all?  (Bush says "no," because AQ isn't a contracting party.)  Even if it does apply -- e.g., with respect to persons detained in our conflict in Afghanistan, as some argue -- are AQ detainees categorically not entitled to POW status?  (Bush says "yes."  Others say that they're entitled to an "Article 5" hearing to determine status, pending which they are presumed to have POW status.)

Whatever the answer is to these questions, I think there's a good deal of consensus that the Administration is correct about a "core" point:  Persons who are uncontrovertibly Al Qaeda detainees -- those who have fought against the U.S. or have engaged in terrorism -- are not, at the end of the day (e.g., after a tribunal hearing), entitled to POW status.  In which case Article 17 does not apply, and coercion of some sort may be used in their interrogation.  As you know, that only begins to beg the tough questions about what forms of coercion may be used.  (See my numerous posts on Balkinization:  http://balkin.blogspot.com/2005/09/anti-torture-memos-balkinization-posts.html.)  Butif a detainee is not a POW -- because they have not complied with the laws of war, or because they hide themselves in civilian populations, etc. -- then there is no absolute ban on coercion.   

4.  I believe that Professor O'Connell goes further and argues that customary international law prohibits all coercion of all prisoners.  (I might be wrong about this -- as I said, I've barely skimmed the article -- in which case, apologies in advance.)  I think this is probably an overreading of customary international law -- Professor O'Connell, for instance, relies on the Geneva Protocols that the U.S. has refused to ratify; it's a complex question to what extent the Protocols reflect customary int'l law.  In any event, the Administration takes the view that the U.S. can, as a matter of domestic law, violate international law.  This is undoubtedly correct -- it happens whenever Congress passes a statute inconsistent with international law (or with a treaty -- the later-in-time statute prevails.)  The difficult question here is whether the President is empowered to unilaterally violate customary international law, without the legislature's authorization.  A very complex and unresolved question.

Posted by Rick Garnett on November 21, 2005 at 02:17 PM in Rick Garnett | Permalink


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