Not Straw Men

Slate's blog on legal issues.
April 7 2008 1:14 PM

Not Straw Men

In his first post in response to my recent column , Marty declares me "simply incorrect" for arguing that there is, as I put it, "considerable space between what the [Army] field manual [on interrogations] permits and what the law might reasonably tolerate." In his second post , he spends some thoughtful paragraphs articulating what interrogation tactics do and do not fall within that space, demonstrating, I think, that his first post was, well, simply incorrect.

The truth is that the gap that separates us on the merits here is not large. We both agree that the military should be governed by the Army Field Manual, which should have, and now does have, the force of law. We both agree that the Bush administration’s rejection of additional legal constraints on the CIA is wrong. We both agree that the CIA should be bound, like the military, to some additional, publicly articulated set of procedures that falls within the broad prohibitions of Common Article 3, the Convention on Torture, and America’s other international obligations. And we both agree—at least, we do after Marty’s second post—that this set of procedures could lawfully include procedures denied the military under the Field Manual.

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We disagree, as best I can tell, on two things:

The first is the precise legal structure that should embody our areas of agreement. Marty believes the CIA should be bound to the Army Field Manual plus whatever additional tactics Congress chooses to specify. I believe, rather, that the CIA should have its own field manual and that a provision of law parallel to the McCain Amendment should bind the agency to it. This would give the agency the flexibility to adopt and change interrogation tactics within the boundaries of international and domestic law, giving it the ability to design policy suited to its particular needs, which may well deviate from those of the military.

The second and probably more serious area of dispute is that Marty does not, as I understand his position, contemplate the need for ever deviating from the prescribed procedures. I, by contrast, suspect there are extreme situations in which the rules will be breached—and should be breached. And I believe the law needs to somehow come to grips with that reality—that is, in a fashion that law almost never does, to contemplate the circumstances of its own violation. This is why I believe the problem of interrogation is exceptionally hard, and not—as Marty rather breezily declares it—an easy one. The careful reader of Marty’s posts will, I suspect, realize that Marty, beneath that breezy declaration, understands it as hard as well.

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