Lederman on Bush's Murky CIA Interrogation "Guidelines"

I don't have a lot of time right now to give a good personal analysis of the pettifogging details in the Bush Administration's new guidelines on CIA interrogations. The text of the E.O. can be read here.

Luckily, Marty Lederman over at Balkinization has written an excellent analysis of why the new guidelines won't stop the torture and abuse: The CIA Interrogation Executive Order: Well, Did You Really Expect Anything Better?

Here's a brief excerpt (emphases in bold are mine, unless otherwise indicated):

Last month I surmised that the E.O. would be "very cryptic and uninformative, and that the public will not learn of what techniques our government is using and deeming not to be 'cruel treatment and torture.'"

Bingo....

Recall that the Court in Hamdan held that CA3 governs U.S. conduct in the conflict with Al Qaeda. Most importantly, CA3 [Geneva Convention Common Article Three] categorically prohibits "cruel treatment and torture." Until the MCA was enacted, all violations of CA3 were felonies under the War Crimes Act (WCA), but the MCA narrowed the scope of the WCA, such that only what the statute calls "grave" breaches of CA3 are now criminalized. And, not surprisingly, the subcategories of "cruel treatment" and "torture" that remain criminal under the MCA-amended WCA just so happen not to include the forms of cruel treatment that reportedly comprised the CIA's "enhanced interrogation techniques" program. In other words, the MCA appears to have de-criminalized the CIA's use of those techniques -- such as stress positions, prolonged sleep deprivation, hypothermia... threats, extreme isolation, and possibly even waterboarding.

As I've explained in several posts, however -- including this one -- non-criminal does not equal legal. Common Article 3 remains the supreme Law of the Land, even if not all of it is incorporated in the War Crimes Act.... The MCA expressly cautions that its revised WCA definitions "are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article" (section 6(b)) [Emphases in this sentence are from original]....

The only truly important section of the E.O. is section 3(b)(i)(C), which defines the category of violence that will be deemed to violate Common Article 3 for purposes of determining whether a CIA interrogation program comports with CA3. In addition to torture as defined by the federal criminal statute, and the forms of violence that remain prohibited under the new WCA, that subsection of the E.O. prohibits only "other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in [the War Crimes Act]." [emphases in original

In other words, if a form of violence is not already prohibited by federal criminal law, and is not "comparable" to the forms of violence prohibited by the WCA, the CIA is not prohibited from using it....

The Bush Administration and the MCA have interpreted "serious" and "severe" in extremely confusing and unhlepful ways, all with an eye to permitting at least some of the CIA techniques. Today's order merely adds to the obfuscation.

This is no way to run a government ostensibly subject to the rule of law. As I've written repeatedly here, there is no excuse for the fact that neither the statute nor the E.O. defines with any clarity whatsoever which techniques are prohibited and which are not.

This means the core program of CIA/KUBARK torture -- the propagation of Debility, Dread, and Dependency via sensory and sleep deprivation, isolation, the manipulation of phobias and fear, and the physical weakening of the detainee/victim -- remains intact.

As Marty Lederman essentially says, coming from Bush, did we really expect anything different?