Congress moves toward clear policy against torture
Even if symbolic, legislation would separate lawmakers from White House and reassure allies.
If Congress passes new legislative restrictions on cruel and degrading treatment of foreign terrorism suspects - as now appears likely - it's not clear what the practical effects on US interrogation practices might be.
US law already bans torture by American citi- zens. The Bush administration claims that it does not use cruel and degrading methods, even on prisoners held on foreign soil. The language of the proposed bill doesn't include any enforcement mechanisms.
But the symbolic effects of new restrictions could be important. If the provision becomes law, Congress would be putting some distance between itself and the White House on a controversial issue. And the action could be interpreted as a statement to America's foreign critics.
"It would have the strong sense of reassuring allies - and enemies - that we stand for what we've always said that we stand for," says David Luban, a professor and legal ethics expert at Georgetown University Law Center.
Sen. John McCain (R) of Arizona, a prisoner of war in Vietnam, has long argued that the US needs explicit language barring cruel, inhuman, and degrading treatment of prisoners in US hands, wherever they may be found, as a way to clarify existing antitorture laws.
The abuses at Abu Ghraib prison in Iraq and allegations of US misconduct at the detention center in Guantánamo Bay, Cuba, only show why such legislation is necessary, Senator McCain has said.
Initially, the White House flatly opposed the move and threatened a veto of the $453 billion military spending bill, to which the interrogation provision is attached.
Then the administration switched to lobbying for an exemption from the legislation for CIA interrogators.
But McCain remained adamantly against such a loophole. As its final position, the administration tried to gain some measure of protection against prosecution for interrogators who step over the legal line.
On Thursday the White House and McCain agreed to bring the interrogation amendment into conformity with the Uniform Code of Military Justice, which says that those accused of violating interrogation rules can defend themselves if a reasonable person could have concluded that they were following lawful orders.
Although some legislators remain opposed to the McCain provision, it appears the senator has votes on his side: The House backed the cruelty ban 308-to-122 on a preliminary vote Wednesday - and thus it now appears likely to become the law of the land.
Though many news reports have described McCain's measure as an "antitorture" bill, torture is already explicitly banned by US law. It has long been illegal within the United States itself, and, following US ratification of the UN Convention Against Torture in 1994, Congress voted to extend that ban to US citizens wherever they might be found - in other words, interrogators based in other nations.
At issue, instead, is a second tier of interrogation techniques judged cruel, inhuman, and degrading.
But what's "cruel, inhuman, and degrading"? Administration lawyers have defended the practice of water-boarding, in which a detainee is made to feel as if he is drowning, as not being included in this category.
"The real issue is the definitional issue," said David Rivkin, a Washington attorney and former Justice Department official, at a Brookings Institution forum on detention policy Dec. 12.
The McCain provision addresses this only indirectly, by requiring service members to follow interrogation practices outlined in the Army Field Manual during interrogations of prisoners held in Defense Department facilities.
The Army is reportedly working on a new, classified addendum to its field manual that would allow interrogators to use more stress-inducing methods. But in its current incarnation, the manual is "quite a humane document," says Mr. Luban. "It makes it clear that physical contact with detainees is not permitted."
In the past, the administration has claimed that it has more legal leeway to operate outside of US territory than it does in the US. Specifically, it has denied that restrictions against cruel, inhuman, or degrading methods cover extraterritorial interrogations - but it adds that as a matter of policy the US would not exercise this right.
McCain's measure would close this legal loophole. But even McCain has said that if presented with a "ticking time bomb" scenario - in which a detainee had information that could head off an imminent, devastating attack - a president might have the authority to order anything deemed necessary to protect American lives.
Abraham Lincoln, after all, suspended habeas corpus rights during the Civil War.
Presidents do what they have to do. "But you take responsibility for it," said McCain in a Newsweek article last month.
"The United States has a critical role to play in championing human rights principles," said the Helsinki Federation for Human Rights in a statement. "But to gain credibility in this effort it must ... insist that human rights are scrupulously respected in practice by all ... operating on behalf of the US government."