- In early December Secretary of State Condoleezza Rice
ran a gauntlet of criticism in European capitals, perhaps capped by her
meeting with Angela Merkel, the recently installed German Chancellor. The
immediate subject was a German citizen Lebanese, Khaled al-Masri, who reports
that he suffered rendition at US hands from Macedonia to Afghanistan where
he was tortured. US officials have said his detention was a mistake, which
removes any doubts that this case actually occurred, and that US agents
were responsible.
-
- Recognizing the seriousness of the situation, on December
14, by a vote of 308 to 122, the House of Representatives approved a resolution
supporting Senator John McCain's effort to make torture of prisoners against
US law. His language, appended to the Defense appropriation bill, already
had been approved by a vote of 90 to 9 in the Senate.
-
- While the White House had threatened that President Bush
would veto the appropriations bill if it came to him with the McCain language
in it, on December 15, the President and Senator McCain agreed that the
amendment would not be vetoed. In any case McCain reported after his meeting
with Bush that it was "a done deal".
-
- *Unfortunately, the McCain Amendment has two main problems:*
First, the amendment establishes "the Army Field Manual on Intelligence
Interrogation as the uniform standard for interrogation". That sounds
constructive, except that in an obvious blindsiding of McCain, the Pentagon
has revised the Army Field Manual to provide a sizeable list of interrogation
methods that did not previously exist in the document. That list remains
classified, the Pentagon says, in order to keep potential prisoners from
figuring out how to thwart the techniques. Thus, we are unable to judge
whether the McCain Amendment, as forthright as it seems, actually prohibits
torture.
-
- Second, the amendment establishes that no prisoner of
whatever nationality "in the custody or under the physical control
of the United States Government" shall be subjected to "cruel,
inhuman or degrading" treatment at the hands of any American official
or agent that is prohibited by the Fifth, Eighth and Fourteenth Amendments
to the Constitution or that are inconsistent with the United Nations Convention
Against Torture. Except possibly for a reference to drawing and quartering
(an inevitably fatal technique), there is no list of torture methods associated
with the constitutional language (The Fifth protects against self incrimination,
the Eighth prohibits cruel and unusual punishment and the Fourteenth provides
for due process.). The UN Convention prohibits infliction of "severe
pain" whether physical or mental.
-
- *All of the authorities cited are weak on definitions
of torture* because they do not provide either a specific definition or
a list of prohibited techniques. On that point, in light of the Pentagon's
classified list of permissible techniques, what the McCain Amendment unintentionally
does is provide cover for that list. Unless the Pentagon list becomes public
we will not know whether the McCain Amendment prohibits torture or actually
authorizes torture by blessing the techniques now included in the Army
Field Manual.
-
- *In any case the McCain Amendment did not go far enough*.
While there is still substantial evidence of continuing abuse of prisoners
at Guantanamo, Abu Ghraib, Diego Garcia, and other US sites, the worst
cases involve treatment of prisoners the US has delivered to places such
as Romania, Poland, and Egypt where torture is known to be common. The
McCain language prohibits abuse of prisoners in US custody, but it is silent
on the issue of extraordinary rendition, here defined as the surrender
of prisoners by any government or agency to contractors or other governments
for interrogation by torture and harsh confinement.
-
- *If the assurances of other governments that they do
not torture prisoners are believed, what is the purpose of rendition?*
The obvious benefit to the US is to keep people who are denied any civil
liberties or human rights out of US public view and away from lawyers and
the courts. On the latter point, it seems clear that many prisoners now
in custody somewhere will never be brought to trial but, guilty or not,
they will be kept permanently to prevent them from rejoining their groups
or from seeking revenge for mistreatment. None of these activities is consistent
with American values. All have figured in US treatment of prisoners since
9-11.
-
- *Thus while the McCain language is good, it leaves a
large loophole. *Subject to what may be on the Army Field Manual classified
list, his language would restore the integrity of US law and practice where
prisoners are in US custody. However, the Amendment's silence on the issue
of renditions leaves a loophole large enough to fly a fleet of unmarked
airplanes through. In recent debate, Defense Secretary Rumsfeld has insisted
that US officials have no responsibility to stop torture by others--that
is to intervene in other people's treatment of prisoners. Even if that
is so, US officials should not be free to turn prisoners over to other
governments or agents without a reason that is acceptable in international
law and practice, or without regard for their humane treatment.
-
- *US** law should provide that prisoners may be turned
over to other governments only under extradition rules. *Any prisoner in
US custody should be turned over to another government only under the terms
of an extradition treaty with the United States. That treaty should require
that extradition occur only for people charged with specific crimes in
the requesting country that are recognized as crimes in the United States.
The key virtue of this procedure is that the US would not be handing prisoners
over to someone else to serve a US purpose, e.g., extracting information
by torture. Rather, the US would be responding to the legitimate legal
and law enforcement needs of another government. In a regime of proper
regard for law and justice, the US would have to justify and to handle
its own prisoners. The Torture Outsourcing Prevention Act, HR 952, introduced
in February 2005 by Representative Ed Markey of Massachusetts, would accomplish
this, but its passage has been systematically blocked by the Bush administration.
-
- *There should not be two classes of people covered by
US practice*: Those entitled to the protections of law and those who are
exempt from them. Recently a group of professors at Case University developed
and sent a set of possible rules in this matter called the "Cleveland
Principles" to members of Congress. In brief, there are five:
-
- 1. _There is no law-free zone_; international humanitarian
law and international human rights law apply to U.S. treatment of detainees,
both in the United States and abroad.
-
- 2. _Where there are any doubts a competent tribunal must
decide _whether a person captured in the war on terror is entitled to prisoner
of war status.
-
- 3. _Nothing in the war on terror can justify committing
acts of torture_ or cruel, inhumane or degrading treatment
-
- 4. _Outsourcing torture to other countries or to private
contractors is unlawful_.
-
- 5. _Governments and government personnel are legally
obligated not to engage in torture_persons who commit such acts may face
individual criminal liability
-
- *To apply such rules effectively, the definition of torture
should itself be made clear. *One of the common practices reportedly used
at Guantanamo, Abu Ghraib and other facilities is so-called "water-boarding"
that involves fastening the victim tightly to a plank, repetitively plunging
him head down into water, and keeping him there for long intervals. The
treatment is said to have been developed during the Spanish Inquisition
to obtain confessions from heretics, and its inhumanity is obvious. Since
the Attorney General has refused to object to water-boarding, the odds
are favorable that it is one of the Army's new Field Manual extreme interrogation
techniques.
-
- *How reliable is public opinion on this issue? *Polls
taken during 2005 indicated that at least a majority of those polled believed
torture was justified at least sometimes. Apparently Fox News viewers were
most bloody-minded, finding, as Ray McGovern reported in a recent article,
torture acceptable in a wide range of situations.
-
- Such polls are of questionable reliability. First, they
have been taken in an information environment of fear mongering, deceit
and even disinformation, so that the public has no real idea of what the
real situation is. Second, finding no fault with the torture of unknown
individuals, not specifically accused of any particular crime, in some
remote place, not of American nationality, is a lot easier to accept than
torture by people you know of people you know in a despicable manner you
have to watch.
-
- The answers would surely be different if the people polled
had been, as John McCain was, tortured. Consigning an individual, regardless
of what he may have done or is thinking of doing, to a hell-hole like Helwan
prison in Egypt is truly an evil act. If Americans really understood what
happens in such places, they would not approve.
-
- *Our own troops have to be concerned about opening the
floodgates. *Previously, the rules in the Army Field Manual were drawn
with an eye over the shoulder at what other governments or enemies in the
field might do to American prisoners if captured. That, in fact, is the
only sensible reason for a classified list of techniques. However, the
list of classified techniques will slowly leak into the public domain,
more quickly into the hands of other intelligence organizations, and all
the techniques that work--whatever that means--will become common practice.
In the meantime, the mere fact that the list is classified will be presumed
to mean that extreme measures are included. US forces, thereby, will have
specified the conditions of their own torture if captured.
-
- *It is worth considering at this stage just how serious
a threat terrorism poses. *Is terrorism a sufficient threat to warrant
such severe distortions of American law and practice? Are there things
we ourselves can do to alleviate this threat? The recent incident pattern
says yes. In the first half of 2005, worldwide terrorist incidents numbered
1,650, of which 1,120 occurred in Iraq, Palestine, Afghanistan, and Israel--all
areas associated with major distortions in American policy: Illegal invasion
of Iraq, under-manned War on Terrorism in Afghanistan, growing repression
of the Palestinian people, and one-sided support for Israel in the Middle
East conflict. Worldwide terrorism was declining before 9-11. It has increased
sharply since the invasion of Iraq. Outside Iraq, terrorism poses minor
threats to Americans, and the whole pattern can be reduced if Americans
stop being the aggressor.
-
- *How much of our terrorism problem will the use of torture
help us solve? *There are two critical levels to the answer. First is how
likely is it that we will have in custody and under interrogation the very
individuals who know something about a possible incident? Since today there
are potentially more than a 100,000 people in the world who loosely qualify
as terrorists or are affiliated with a known terrorist group, worldwide
we may have one to five percent of them in custody somewhere. Second, since
terrorists tend to work in cells and to share little information outside
their core groups--a habit that is reinforced by risk exposure--the chances
of our having in custody the ringleaders and planners of any group are
even smaller. Since big decisions are likely to be closely held, the chances
that many, if any of the six hundred detainees at Guantanamo actually know
plan details for any group are pretty small. The longer individuals are
confined, the less likely it becomes that any information they may divulge
will be current or valuable.
-
- *How trustworthy is information obtained by extreme interrogation*?
It is significant that much of the planning for the Iraq invasion appears
to have been based on faulty information from one source. It is even more
significant that, under protracted torture, the key source lied. Nor, after
the fact, is it clear that this source actually knew anything. The template
is that under torture people will say almost anything to stop the pain.
To sum it up, having a small percentage of the world's terrorists in custody
and using extreme interrogation measures to make them talk--probably lie--sounds
like a flimsy reed on which to hang success in the War on Terrorism.
-
- *Application of the legal and moral principles stated
in the McCain Amendment is absolutely essential* if the United States is
to restore any position of respectability on prisoner treatment. But the
version of those principles being pursued does not go far enough. There
simply cannot be a loophole built into the practice by saying no prisoner
"in US custody" will be tortured when the covert practice is
to turn prisoners over to governments who are not at all squeamish about
extreme treatment. Rather, what the McCain solution, now accepted by the
White House, will most likely do is enlarge the window for extraordinary
renditions. There could well be an end of extreme treatment in US controlled
facilities that is matched by increased use of other facilities outside
US control but not out of reach for US authorities who want to have them
used.
-
- *The United States will be no less guilty of torturing
prisoners* than it would be if the torture occurred on US soil. A US policy
that condones torture by other governments, even makes active use of those
habits, must be as contrary to US law as torture of prisoners in US custody.
Thus US restrictions on torture of prisoners should explicitly prohibit
either torture by US officials and agents or by other governments or organizations
with US knowledge or consent of any US official. Those rules must also
apply to any contractors employed by the US.
-
- *The unsolved problem is ambiguity*. Senator McCain set
out to solve a problem that deserves a real solution. However, the combination
of deals and events that transpired in the process of obtaining agreement
to the amendment leaves in doubt just how much of the problem has been
solved. The Amendment says: "No individual in the custody or under
the physical control of the United States Governmentshall be subject to
cruel, inhuman, or degrading treatment", but American law remains
silent on the matter of extraordinary renditions. While the Defense Department
detention of prisoners is subject of specific legal language in the Amendment,
there is no reference either to the CIA or to its practices.
-
- *Other governments have been less than candid on this
matter*, fudging on admitting they were aware of or participated in passive
or active ways in extraordinary renditions by the CIA. Italy has now issued
warrants for 22 alleged CIA agents for such activity. Last week there was
a back-handed British admission of at least passive involvement. Other
governments, e.g., Poland, Romania, Syria, Israel (the Washington Post
suggests there are at least 8), seem prepared to keep their heads down
and let the US take the flak.
-
- *The integrity of American leadership is a final nagging
issue.* Dick Cheney fought the McCain Amendment down to the wire, and apparently
succeeded in avoiding references in it to the CIA. George Bush has made
it clear with his spying directives and pronouncements about them that
he does not feel bound by US law. Present US law provides appropriate procedures
for extraordinary measures that may be justified, but he chooses not to
apply those procedures. Presidential approval or leadership that results
in laxity in observing the McCain Amendment, even if it were flawless,
probably means that torture, call it extreme interrogation, will go on.
Any reduction of that prospect would require that President Bush live up
to his oath of office, diligently observe and assure application of US
laws and treaties that have the force of law. At this stage, the outlook
appears less than promising.
-
- ***********
-
- The writer is a retired Career Foreign Service Officer
who served in senior diplomatic posts abroad, including Economic/Commercial
Counselor in Manila and Consul General in Sao Paulo. In Washington he served
as Deputy Director of the Office of Counterterrorism and as Chairman of
the Department of International Studies of the National War College. He
is author, co-author and editor of five books, including a collection of
essays titled _A World Less Safe_ now available at Amazon.com and Booksurge
Publishing. He is a regular columnist on rense.com, and he will welcome
comments at wecanstopit@charter.net.
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