Marty Lederman has an important take on the latest draft war crime bills the White House has been circulating on the Hill. Marty – who has emerged as the most perceptive and subtle legal analyst on the whole torture issue – thinks the whole Bush-critic emphasis on exculpating civilian officials from war crimes charges is off-base. (I’d be included in his criticism.) His interpretation of the draft legislation is that it is designed to ensure that the CIA retain the right to cruel treatment of detainees, including potentially "water-boarding." Money quote:
I happen to think it would be a mistake to exclude humiliating and degrading treatment from the WCA. But many will disagree with me. What’s important is to realize that this dispute about how "degrading" treatment should be handled is not why the Administration is proposing an amendment to the WCA. Their public focus on subsection (1)(c) of CA3 – the provision dealing with humiliating and degarding treatment – is a feint to throw everyone off the scent. The real issue is the CIA. And that agency is not so interested in making use of the stupid and offensive techniques that were used on Al-Qahtani at GTMO – religious degradation, underwear on the head, etc.
What they are interested in are the "enhanced" techniques that they’ve been authorized to use — including hypothermia, threats of violence to the detainee’s family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly even waterboarding. With respect to these techniques, the issue isn’t the ban on humiliation or degradation – it’s that they are "cruel treatment," perhaps even "torture," under subsection (1)(a) of Common Article 3.
And so the administration wants to rewrite the War Crimes Act to permit the CIA to continue the KGB-innovated "cold cells", the immersion in freezing water, the threats to wives and children, and the "water-boarding" techniques that the Bush administration has made part of American military practice. Knowing how passionately Cheney and Rumsfeld feel about retaining the right to inflict cruelty on military prisoners, this makes sense to me.
The Dish 