Not so Fast...

If you were thinking that the Administration’s recent concession that terror suspects are protected by the Geneva Convention represented sea change in detention and interrogation policy, think again, says Marty Lederman.

[Sen.] 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." (The Washington Post reports that the White House and Senator McCain are crafting a bill that would track the McCain Amendment and that "makes some changes to Common Article 3," such as dropping the phrase "outrages upon personal dignity.")

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 information 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. (Whether that's the best understanding of the Due Process standard is open to serious question -- certainly it would not be under Justice Kennedy's concurrence in Chavez v. Martinez, which might have the support of five Justices on today's Court (although Justices Souter and Breyer have not yet tipped their hand). But Justice Thomas's opinion in that same case indicates that it takes a whole lot more to shock his conscience (and Justice Scalia's) than it does to shock Justice Kennedy's.)

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. Congress has the power to do this: Where a statute authorizes something that a treaty prohibits, the statute governs for purposes of domestic law if it was enacted subsequent to the Senate's ratification of the treaty.

This raises an interesting dilemma for those who opposed military tribunals and inhumane interrogation tactics as instances of Executive overreach. Hamdan may have curtailed the Administration’s ability to sidestep Congressional approval, but it may not, in the end, have much practical impact on detainees. Should Congress move forward with an initiative similar to the one Lederman describes, opponents can no longer claim that the Executive is acting outside of its constitutional authority. Opponents may continue to challenge the “Graham/McCain/Administration initiative” as being inconsistent with an international treaty, or simply, as bad policy, but those arguments will be tough sells considering the current makeup of Congress, the Court, and the public.

--MM