Last week's vote in the Senate in favor of a measure banning the use of cruel, inhuman, or degrading treatment by any agency of the United States government was the most dramatic step Congress has taken to rein in executive power since the terrorist attacks of September 11, 2001. The amendment, put forward by Senator John McCain, was supported by more than two dozen retired field and flag officers of the U.S. military -- including former chairmen of the Joint Chiefs of Staff Colin Powell and John Shalikashvili -- and embraced overwhelmingly (an extraordinary 90-9 margin) by bipartisan leadership in the Senate.
But that was last week. Today, the McCain amendment sits imperiled in conference committee, as a tiny number of conferees work to water down the legislation's bite – to limit it to U.S. armed forces and not U.S. intelligence agencies, or to limit it to acts on U.S. soil rather than acts done in the United States' name anywhere in the world. The White House, signaling what would be the first veto of the Bush presidency, has indicated it is prepared to go to the mat to defend the president's “flexibility” to treat captives in U.S. custody in as cruel, inhuman, and degrading a manner as circumstances warrant. And even some critics on the left have taken on the amendment as not going far enough to correct the widespread practice of torture and abuse in U.S. custody that investigations and leaks since Abu Ghraib have revealed.
Yet while the amendment may be embattled, it is certainly worth the fight.
Unchecked torture and abuse ("cruel, inhuman, and degrading treatment" is simply a legal term of art) by U.S. officials make it more likely the United States will ultimately lose the war on terrorism. The fear and animosity such practices have engendered among affected populations have undermined U.S. efforts to gather strategic intelligence, and to fight virulent insurgencies now underway. As the interim Army field manual on counterinsurgencies published late last year noted: “Those who conduct counterinsurgency operations while intentionally or negligently breaking the law defeat their own purpose and lose the confidence and respect of the community in which they operate.” One former Army interrogator put it more succinctly in his 2004 book, The Interrogators: “The more a prisoner hates America, the harder he will be to break. The more a population hates America, the less likely its citizens will be to lead us to a suspect.” It is at best unproven whether treatment that is cruel or degrading produces useful intelligence; but there is no question that such treatment has made much of the intelligence task harder.
As important, the persistent lack of clarity from political leaders on the rules governing U.S. detention and interrogation operations has put our young troops overseas in an impossible position, asking them to pay the price for policy-level mistakes. Despite repeated public affirmations that the United States does not practice or condone “torture,” the administration has insisted, in contrast, that existing legal bans on the use of “cruel, inhuman, and degrading treatment” (in particular U.S. treaty obligations under the Convention Against Torture) do not apply outside the territory of the United States. The administration has also equivocated on whether the same laws that bind the U.S. armed forces equally bind the CIA (although there is nothing in the treaties or laws banning such treatment that would suggest one agency is at all distinct from the other in required compliance). The McCain bill would foreclose those administration contentions and slam the door on any such arguable loopholes in the law. There would thus be no question for troops stationed in Iraq, Afghanistan, or Guantanamo Bay that tactics like sexual and religious humiliation, chaining detainees in excruciating “stress positions,” or leaving detainees to soil themselves without food or water in frigidly cold rooms -- are acts prohibited by the laws of the United States. For the front-line soldiers who seem too often the only ones faced with the legal consequences of illegal actions, a little congressional clarity on this score would go a long way.
Is the McCain amendment enough to solve the damage done by widespread torture and abuse (authorized or not) at the hands of the United States, or to ensure that such acts can never happen again? No, it is not. Passage of the McCain amendment -- which must still survive intact, including its provisions banning cruel, inhuman and degrading treatment by agents of the CIA, as well as DOD -- must be coupled with vigorous monitoring, effective prosecution and enforcement of wrongdoing, compliance with existing regulations barring “extraordinary rendition” (sending suspects to countries where they are likely to face torture), and critically, the establishment of a bipartisan, independent commission to finally get to the bottom of what happened in U.S. operations over the past four years, and how we can ensure it never happens again.
The McCain amendment is indeed not sufficient. But it is necessary. For four years, Congress has watched from the sidelines as a handful of individuals have sullied the hard-won reputation of the United States as a world leader in military professionalism, accountability, and respect for the rule of law. The Senate has crafted a bill with which we can begin to win it back. Now its leaders must see it through to the president's desk.
Deborah Pearlstein is director of the U.S. Law & Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and a visiting scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University. She clerked for Justice John Paul Stevens during the Supreme Court's 1999-2000 Term.