The Journal of History     Fall 2006    TABLE OF CONTENTS


Rights against torture--without remedies

By Jack Balkin
October 17, 2006

This op ed by Stephen Rickard points out, correctly, I think, that the "alternative sets of procedures" the Administration wants the CIA to use in interrogating prisoners are still illegal, either because they violate the (now amended) War Crimes Act, the McCain Amendment (which prohibits cruel and inhuman treatment), or Geneva Common Article III (which was not repudiated by the Military Commissions Act).

Any CIA official who acts in good faith will probably conclude that waterboarding, hypothermia, stress positions, and related techniques violate one or more of these features of American law.

What the new Military Commissions Act of 2006 (MCA) did, however, was to make these legal norms effectively unenforceable. That is why Rickard's opinion-editorial is a bit misleading. The McCain Amendment does not provide an individual remedy for violations, the MCA states that individuals cannot enforce their rights under the Geneva Conventions in judicial procedings, including appplications for habeas corpus. As for the (amended) War Crimes Act, it requires that the Justice Department decide to prosecute a CIA official who acted on orders from the President, which, at least under this current Administration, is very unlikely.

The bottom line is simple: The MCA preserves rights against torture and cruel, inhuman and degrading treatment, but it severs these rights from any practical remedy.

This means that the President can have his "alternative sets of procedures"-- i.e., torture lite-- if he can persuade CIA personnel to violate the law with the promise that they will never be prosecuted or punished for doing so. When Rickard suggests that someday CIA officials will have to answer to judges and juries, he assumes precisely what the new bill acts to forestall-- judicial inquiries into the conduct of CIA interrogations.

This is the great irony (and chutzpah) of the President's repeated claim that he only wanted to clarify the law so that the CIA and other officials wouldn't have to break it. The CIA will still be violating the law if it does what the President wants it to do. However, because the Military Commissions Act severs rights from remedies, the Executive branch has the sole power of enforcement. The President decides whether he thinks people in the Executive branch are violating the law, and even if he believes they are violating the law, the President also decides whether he will order them to stop. By now we know the answer to this question. He will not order them to stop. Quite the contrary: the President has made clear in his repeated endorsement of these "alternative" techniques (techniques that he will not name in public) that he will push CIA officials to break the law. Because the Executive branch holds all enforcement powers within itself, the only thing that prevents cruel, inhuman and degrading treatment is the conscience of CIA personnel and executive branch lawyers.

And we know from the fiasco over the torture memo that the conscience of executive branch lawyers has not always been sufficient.

There are many things that are deeply distressing about the Military Commissions Act of 2006. One of the most distressing is its deeply cynical attitude about law. The President has created a new regime in which he is a law unto himself on issues of prisoner interrogations. He decides whether he has violated the laws, and he decides whether to prosecute the people he in turn urges to break the law. And all the while he insists that everything he does is perfectly legal, because, the way the law is designed, there is no one with authority to disagree.

It is a travesty of law under the forms of law. It is the accumulation of executive, judicial, and legislative powers in a single branch and under a single individual.

It is the very essence of tyranny.



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