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Senator McCain Condemns Torture -- But Votes Against the Bill That Would Prevent It

By Jack M. Balkin

Andrew Sullivan hopefully writes that, because of the McCain nomination, "these primaries have ensured that the U.S. will not be torturing after the Bush-Cheney years." Were that it were so.

Today the Senate voted 51-45 to adopt the Conference Committee's intelligence authorization bill. Included in that bill is section 327, a Feinstein Amendment that would require all agencies of the U.S. government, not simply the military -- to limit interrogation techniques to those identified in Army Field Manual 2-22.3. Section 327 reads as follows:

SEC. 327. LIMITATION ON INTERROGATION TECHNIQUES.
(a) LIMITATION.?No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.
(b) INSTRUMENTALITY DEFINED.?In this section, the term ??instrumentality??, with respect to an element of the intelligence community, means a contractor or subcontractor at any tier of the element of the intelligence community.

Only five Republicans voted for the bill--Senators Collins, Hagel, Lugar, Smith and Snowe.

Conspicuously absent from this list is, of course, Senator and Republican presidential nominee John McCain, who has bravely led several previous legislative efforts to prohibit torture. Senator McCain has issued an explanation for his vote, reprinted below. According to the Director of the FBI and Director of the Defense Intelligence Agency [see this video at 1:30-1:32], the Army Field Manual techniques are sufficient for both the military and the FBI to successfully interrogate detainees, including those who might have critical information that might prevent imminent harm to U.S. persons. But apparently Senator McCain has concluded that such techniques are not enough for the CIA.

Senator McCain rightly insists that the U.S. may not (i) torture; (ii) engage in cruel treatment prohibited by Common Article 3; or (iii) engage in conduct that shocks the conscience, under the McCain Amendment. He also insists that waterboarding violates each of these legal restrictions, that the Bush Administration's legal analysis has been dishonest and flatly wrong, and that we need "a good faith interpretation of the statutes that guide what is permissible in the CIA program."

The Feinstein Amendment would have accomplished all of these objectives, but Senator McCain voted against it, presumably because he wishes that the CIA be permitted to continue the use of other of its enhanced techniques, apart from waterboarding. Those techniques are reported to include stress positions, hypothermia, threats to the detainee and his family, severe sleep deprivation, and severe sensory deprivation. Senator McCain has not explained which of these he thinks are not torture and cruel treatment, nor which he would wish to preserve for use by the CIA. But if the President does as he has promised and follows Senator McCain's lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques -- and possibly waterboarding, as well.

By contrast, Senator Clinton supports the Feinstein amendment, and [UPDATED] Senator Obama does, too (see Answer No. 7).

If Senator McCain believes that there are particular "enhanced" techniques that are not in the Field Manual, but that are also not torture or cruel treatment, and wishes to allow the CIA to use them, he should identify what they are, and offer legislation that would authorize those, and those only, techniques, in addition to those listed in the Field Manual. Otherwise, despite all his worthy efforts in this area, Senator McCain is now facilitating the CIA's use of techniques that are unlawful, including some that are torture even by Senator McCain's own lights. (For more on why the various CIA techniques are unlawful, see the Human Rights First Report "Leave No Marks.")

SENATOR MCCAIN STATEMENT ON INTELLIGENCE AUTHORIZATION CONFERENECE REPORT

Washington, D.C. ? U.S. Senator John McCain (R-AZ) today submitted for the Congressional Record the following statement regarding the Conference Report to accompany H.R. 2082, the Intelligence Authorization bill:

Mr. President, I oppose passage of the Intelligence Authorization Conference Report in its current form.

During conference proceedings, conferees voted by a narrow margin to include a provision that would apply the Army Field Manual to the interrogation activities of the Central Intelligence Agency. The sponsors of that provision have stated that their goal is to ensure that detainees under American control are not subject to torture. I strongly share this goal, and believe that only by ensuring that the United States adheres to our international obligations and our deepest values can we maintain the moral credibility that is our greatest asset in the war on terror.

That is why I fought for passage of the Detainee Treatment Act (DTA), which applied the Army Field Manual on interrogation to all military detainees and barred cruel, inhumane and degrading treatment of any detainee held by any agency. In 2006, I insisted that the Military Commissions Act (MCA) preserve the undiluted protections of Common Article 3 of the Geneva Conventions for our personnel in the field. And I have expressed repeatedly my view that the controversial technique known as ?waterboarding? constitutes nothing less than illegal torture.

Throughout these debates, I have said that it was not my intent to eliminate the CIA interrogation program, but rather to ensure that the techniques it employs are humane and do not include such extreme techniques as waterboarding. I said on the Senate floor during the debate over the Military Commissions Act, ?Let me state this flatly: it was never our purpose to prevent the CIA from detaining and interrogating terrorists. On the contrary, it is important to the war on terror that the CIA have the ability to do so. At the same time, the CIA?s interrogation program has to abide by the rules, including the standards of the Detainee Treatment Act.? This remains my view today.

When, in 2005, the Congress voted to apply the Field Manual to the Department of Defense, it deliberately excluded the CIA. The Field Manual, a public document written for military use, is not always directly translatable to use by intelligence officers. In view of this, the legislation allowed the CIA to retain the capacity to employ alternative interrogation techniques. I?d emphasize that the DTA permits the CIA to use different techniques than the military employs, but that it is not intended to permit the CIA to use unduly coercive techniques ? indeed, the same act prohibits the use of any cruel, inhumane, or degrading treatment.

Similarly, as I stated after passage of the Military Commissions Act in 2006, nothing contained in that bill would require the closure of the CIA?s detainee program; the only requirement was that any such program be in accordance with law and our treaty obligations, including Geneva Common Article 3.

The conference report would go beyond any of the recent laws that I just mentioned ? laws that were extensively debated and considered ? by bringing the CIA under the Army Field Manual, extinguishing thereby the ability of that agency to employ any interrogation technique beyond those publicly listed and formulated for military use. I cannot support such a step because I have not been convinced that the Congress erred by deliberately excluding the CIA. I believe that our energies are better directed at ensuring that all techniques, whether used by the military or the CIA, are in full compliance with our international obligations and in accordance with our deepest values. What we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program.

This necessarily brings us to the question of waterboarding. Administration officials have stated in recent days that this technique is no longer in use, but they have declined to say that it is illegal under current law. I believe that it is clearly illegal and that we should publicly recognize this fact.

In assessing the legality of waterboarding, the Administration has chosen to apply a ?shocks the conscience? analysis to its interpretation of the DTA. I stated during the passage of that law that a fair reading of the prohibition on cruel, inhumane, and degrading treatment outlaws waterboarding and other extreme techniques. It is, or should be, beyond dispute that waterboarding ?shocks the conscience.?

It is also incontestable that waterboarding is outlawed by the Military Commissions Act, and it was the clear intent of Congress to prohibit the practice. The MCA enumerates grave breaches of Common Article 3 of the Geneva Conventions that constitute offenses under the War Crimes Act. Among these is an explicit prohibition on acts that inflict ?serious and non-transitory mental harm,? which the MCA states ?need not be prolonged.? Staging a mock execution by inducing the misperception of drowning is a clear violation of this standard. Indeed, during the negotiations, we were personally assured by Administration officials that this language, which applies to all agencies of the U.S. Government, prohibited waterboarding.

It is unfortunate that the reluctance of officials to stand by this straightforward conclusion has produced in the Congress such frustration that we are today debating whether to apply a military field manual to non-military intelligence activities. It would be far better, I believe, for the Administration to state forthrightly what is clear in current law ? that anyone who engages in waterboarding, on behalf of any U.S. government agency, puts himself at risk of criminal prosecution and civil liability.

We have come a long way in the fight against violent extremists, and the road to victory will be longer still. I support a robust offensive to wage and prevail in this struggle. But as we confront those committed to our destruction, it is vital that we never forget that we are, first and foremost, Americans. The laws and values that have built our nation are a source of strength, not weakness, and we will win the war on terror not in spite of devotion to our cherished values, but because we have held fast to them.

Full post as published by Balkinization on February 13, 2008 (boomark / email).