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September 16, 2006

Geneva Article 3, McCain, Warner, and Statutes

I am not an expert at Article 3 of the Geneva Convention, nor what is or is not "torture." When I listen to the news, it sounds like the President simply wants to clarify what is prohibited by Article 3, which sounds like a good idea: bright lines are better than not. I've pieced together below links to the various documents and history, so that you can decide what's going on. It's an important issue that, to a large extent, involves statutory meaning, so that's why it's here. If you know of other pertinent documents I should list, let me know:

Alleged descriptions of some of the "enhanced methods" of getting information. There's a photo and more details here. I now know what "water boarding" is, and this fact -- "CIA officers told ABC News that 9/11 mastermind Khalid Sheikh Mohammed lasted the longest under water boarding, two and a half minutes, before beginning to talk" -- tells you that it certainly makes people talk to avoid it (put to the side whether that means it is effective, which of course is quite a distinct issue). Id.

Geneva Article 3 which provides in full:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Hamden Decision (inspired the need for the statute -- won't get into what it means for the conduct that occurred without it!). For an explanation of why the Court's holding that this article of the Geneva Convention applied was so important, try here.

AG Gonzales' testimony about the need to act after Hamden.

Executive branch's proposed statute. (Note: to save the Judiciary's time, the bill states: "The prosecution of such individuals by military com missions established and conducted consistent with this Act fully complies with the Constitution, the laws of the United States, treaties to which the United States is a party, and the law of war."). A central part is this:



(1) TORTURE.—Any person who commits,

(1) TORTURE.—Any person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be guilty of a violation of this subsection. ‘Severe mental pain or suffering’ has the meaning provided in 18 U.S.C. § 2340(2).

“(2) CRUEL OR INHUMAN TREATMENT.—Any person who commits, or conspires or attempts to commit, an act intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including severe physical abuse, upon another person within his custody or physical control shall be guilty of a violation of this subsection. ‘Severe mental painor suffering’ has the meaning provided in 18 U.S.C. § 2340(2).

“(3) PERFORMING BIOLOGICAL EXPERIMENTS.—Any person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical purpose and in so doing endangers the body or health of such person or persons shall be guilty of a violation of this subsection.

“(4) MURDER.—Any person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

“(5) MUTILATION OR MAIMING.—Any person who intentionally injures, or conspires or at-24
tempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

“(6) INTENTIONALLY CAUSING GREAT SUFFERING OR SERIOUS INJURY.—Any person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons 17
taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. ‘Serious bodilyinjury’ has the meaning provided in 18 U.S.C. § 113(b)(2).

“(7) RAPE.—Any person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object shall be guilty of a violation of this subsection.

“(8) SEXUAL ASSAULT OR ABUSE.—Any person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact, shall be guilty of a violation of this subsection. For purposes of this offense, ‘sexual contact’ has the meaning provided in 18 U.S.C. § 2246(3).

“(9) TAKING HOSTAGES.—Any person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be guilty of a violation of this subsection. Any person who attempts to engage or conspires to engage in this offense shall also be guilty under this subsection.”

Competing Senate Version by Senators Warner, McCain, and Graham, which in large part tracks the Geneva Convention language and also clearly prohibits a broader range of conduct than the President's version. (it's too long to try to pull a part of, unfortunately.)

There's a long entry here that seeks to tie some of this together.

When I read the literal language of the bills - and, again, I'm no expert on this -- the President's version would authorize conduct that the Geneva Convention seems to prohibit, and would authorize conduct that the Warner/McCain/Graham bill would continue to prohibit.

So, I guess the question is: do we follow the Geneva Convention, or not?

Again, I am posting this mostly as a resource and gathered this to educate myself, as well as you readers. If you know more about this than I do (not a hard thing), please educate me.... about the statutory construction issues. There are other places for politics.

September 16, 2006 | Permalink | Comments (2) | TrackBack

September 14, 2006

2d Circuit Splits on ADEA Interpretation

In Meacham v. Knolls Atomic Power Lab., 2006 WL 2338174 (2d. Cir. Aug. 14, 2006), a majority held that the plaintiff in an ADEA claim bore the burden to prove that the decision to terminate the plaintiff was improper, and was not based on "reasonable factors other than age" in terms of 29 USC 623(f)(1).  The majority relied upon the development of the business necessity defense under Title VII and followed the reasoning that because under Title VII the lack of business necessity was deemed to be part of the plaintiff's burden of persuasion, and not an affirmative defense, so too it was under the ADEA. (The defendant has the burden of production, not persuasion, on business necessity.)

In dissent, Judge Pooler ignored this approach and relied instead on statutory construction principles to conclude it was an affirmative defense under the ADEA.  It's a fascinating case, and one that pits in a way "legal context" -- the majority approach -- against plain meaning.  Stay tuned.  Neat case.

September 14, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack

Interesting New Article

There's an interesting piece just out by a student analyzing recent decisions of the U.S. Court of Appeals for DC that includes a thoughtful analysis of then-judge now Justice Roberts' approach to both interpretation and Chevron deference. It's Maile Gradison, Recent Decisions of the United States Court of Appeals for the District of Columbia Circuit: Administrative Law, 74 Geo. Wash. L. Rev. 619 (June 2006). I've not studied his approaches closely, and the case in this article involved a dissent and both interpretation and Chevron deference, and so is quite interesting, and condensed. It's the first section of the article you'll want to read.

I couldn't find it anywhere but on Westlaw (I didn't check Lexis), and the journal's web page, shows only the cover page for a volume, without lnks to the articles, so don't check there. Journals are going to have to go on-line, but that's for another blog.

September 14, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack

September 13, 2006

Nebraska Statute Survives Scientologists' Challenge

Howard Bashman reports on Spiering v. Nebraska issued by the federal district court in Nebraska on September 12, 2006, upholding a statute that requires that newborn babies be tested within 48 hours of birth for certain diseases over a challenge by Scientologists that this violated the "silent birth" tenet of their religion. The court held the statute rationally related to a legitimate state purpose, and rejected search and seizure and other challenges.

It's an interesting read, both for the court's analysis of the constitutional issues implicated by the statute, and also for its tone: the judge was quite respectful, of the parties and of counsel. It was not your typical case. One example from the opinion:

In summary, I conclude that Nebraska’s program is rationally related to a legitimate governmental interest. That said, I offer one additional comment. I am acutely aware that Nebraska’s program, unlike the situation in some other states, allows no exemptions for religious reasons. Whether that is a wise policy, I do not know. My job as a federal judge, particularly when applying rational basis scrutiny, does not allow me to second guess the politically accountable branches of Nebraska’s government on this very sensitive and important issue.

My guess is this one's headed up for appeal.

September 13, 2006 | Permalink | Comments (0) | TrackBack

September 12, 2006

Worst Statute in the World for September 12, 2006

Again with a nod to Keith Olbermann, this week's Worst Statute in the World has been around for nearly 20 years, has resulted in circuit splits as to its meaning, and has been called "not a model of clarity" and was enacted "without the usual deliberative process afforded to such important legislation."  U.S. v. Perry, 389 F.Supp.2d 278 (D. R.I. 2005).  The Second Circuit just entered the fray.  U.S. v. Castillo, __ F.3d __, 2006 WL 2374281 (2d Cir. Aug. 16 2006).

It's 21 USC 841, our first criminal statute to win this prestigious award.  But it deserves it.  I won't try to summarize all of the interpretive issues this statute has created and, no doubt, will continue to create..

The statute was adopted in 1986 as part of the "war on drugs" after the death of Len Bias and others from cocaine overdoses.  It made certain activities federal crimes, imposed stiffer penalties, and all in all probably was a good idea.  Hooray for our side.

The statute creates some stark distinctions depending on what form of cocaine the defendant possesses: a defendant who possesses 5 grams of "cocaine base" gets the same mandatory minimum sentence as a defendant who has 500 grams of cocaine -- 5 years.  So, a defendant can have 100 times as much grams of "cocaine" as "base cocaine" and get similar punishment.  Put the other way, under the statute, it takes possession of 500 grams of cocaine to get the 5 year minimum, but only 5 grams of "base cocaine" to do so. 

Sounds okay, so long as it's worse to have "base cocaine" than "cocaine."  Therein lies the problem:  not only does the statute not define "base cocaine"  scientifically speaking, "cocaine" is "base cocaine".  "To a scientist, 'cocaine' and 'cocaine base' are synonymous..."  Id.  So, what happens if you have 6 grams of "cocaine":  is it also "base cocaine" and so you get the 5 year sentence?

The split is wide, and far, and deep, and... has your tax dollars working for more than two decades on this point, which could be fixed if Congress would act.  But it hasn't.

Today's Worst Statute in the World, where your tax dollars are being wasted because of a rushed-through, poorly drafted statute, and nothing's been done for 20 years.

September 12, 2006 | Permalink | Comments (0) | TrackBack

September 10, 2006

9/11, NSA, Executive Power, and Separation of Powers

There's an interesting piece on Reason.com by Jacob Sullum analyzing the larger separation of powers interests at stake in Judge Taylor's ruling that the NSA's surveillance program was unconstitutional. It's dated for publication on 9/11. What he didn't mention, and that I'll add because it truly is poignant, is Orwell's observations in 1984 about the perpetual state of war being used to justify power and fear:

'And remember that it is for ever. The face will always be there to be stamped upon. The heretic, the enemy of society, will always be there, so that he can be defeated and humiliated over again. Everything that you have undergone since you have been in our hands -- all that will continue, and worse. The espionage, the betrayals, the arrests, the tortures, the executions, the disappearances will never cease. It will be a world of terror as much as a world of triumph. The more the Party is powerful, the less it will be tolerant: the weaker the opposition, the tighter the despotism. Goldstein and his heresies will live for ever. Every day, at every moment, they will be defeated, discredited, ridiculed, spat upon and yet they will always survive. This drama that I have played out with you during seven years will be played out over and over again generation after generation, always in subtler forms. Always we shall have the heretic here at our mercy, screaming with pain, broken up, contemptible -- and in the end utterly penitent, saved from himself, crawling to our feet of his own accord. That is the world that we are preparing, Winston. A world of victory after victory, triumph after triumph after triumph: an endless pressing, pressing, pressing upon the nerve of power. You are beginning, I can see, to realize what that world will be like. But in the end you will do more than understand it. You will accept it, welcome it, become part of it.'


Everything -- including not doing enough to fight terrorism and giving unbridled power to one branch of our government -- has its risks. If you haven't read 1984 recently, you really ought to. I went back and re-read it, and the man was prescient. (Animal Farm, too, has more meaning nowadays than perhaps when it was written)

We all obviously recognize that we don't live in a pre-9/11 world where death and destruction did not come to our shores, but what divides us post 9/11, perhaps ironically enough, is our disagreement on what it means to live in America in a post 9/11 world. Many think things now require giving more power, less checked, to the executive, while others feel this is out of balance with our constitution and checks-and-balances form of government. Both sides have legitimate views.

It will be interesting to see how the Supreme Court ultimately resolves these issues of statutory interpretation and constitutional law over the next few years. I don't know the answers, but I do know that the issues at stake have long-term implications for the country, and so deserve thoughtful, respectful, debate.

There will be no column on September 11, 2006. I remember watching the news after the first plane had struck, and seeing the second one come in and strike the other tower. I'm not sure that act of moronic hatred means that our safety is at risk as much as some portray it is, but that one day certainly shook us deeply. I want us to win -- but I want US to win, not some country that has unneccessarily less freedom, openness, and democracy in common with what we were before 9/11.

September 10, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack