A November 9 Washington Times editorial falsely criticized a recent amendment proposed by Sen. John McCain (R-AZ) to clarify what interrogation techniques are permissible for U.S. forces, claiming that "[t]he amendment doesn't say anything that isn't already considered U.S. policy." In fact, the amendment would limit all Department of Defense (DoD) interrogations to using techniques listed in the Army Field Manual. This restriction would apply to anyone either held by the DoD or whose interrogation occurs at a DoD facility, except for people held for violations of criminal or immigration law. McCain's amendment would also prohibit "cruel, inhuman, or degrading treatment or punishment" against any "individual in the custody or under the physical control of the [U.S.] government," which would also include people in the custody of the CIA. This would overturn current administration policy, which allows such treatment for non-U.S. citizens held abroad. The Times also falsely suggested that the amendment would expose interrogation techniques to terrorists because "[t]he Army Field Manual is not exactly a classified document -- anyone can buy it at Amazon.com, including terrorists, for $12.89." However, a new edition of the field manual on interrogations will soon be released, which will reportedly contain a classified addendum.
Notwithstanding the Times' claim that the McCain amendment would not change U.S. policy, a September 2005 letter to McCain signed by 29 retired military officers makes clear the scope and impact of the legislation:
It is now apparent that the abuse of prisoners in Abu Ghraib, Guantanamo and elsewhere took place in part because our men and women in uniform were given ambiguous instructions, which in some cases authorized treatment that went beyond what was allowed by the Army Field Manual. Administration officials confused matters further by declaring that U.S. personnel are not bound by longstanding prohibitions of cruel treatment when interrogating non-U.S. citizens on foreign soil. As a result, we suddenly had one set of rules for interrogating prisoners of war, and another for ''enemy combatants;'' one set for Guantanamo, and another for Iraq; one set for our military, and another for the CIA. Our service members were denied clear guidance, and left to take the blame when things went wrong. They deserve better than that.
The United States should have one standard for interrogating enemy prisoners that is effective, lawful, and humane. Fortunately, America already has the gold standard in the Army Field Manual. Had the Manual been followed across the board, we would have been spared the pain of the prisoner abuse scandal. It should be followed consistently from now on. And when agencies other than DOD detain and interrogate prisoners, there should be no legal loopholes permitting cruel or degrading treatment.
From McCain's November 4 statement:
The second part of this amendment is a prohibition against cruel, inhumane, and degrading treatment. If that doesn't sound new, that's because it's not - the prohibition has been a longstanding principle in both law and policy in the United States. To mention just a few examples, this prohibition is contained in the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights, to which the U.S. is a signatory; and the binding Convention Against Torture, negotiated by the Reagan administration and ratified by the Senate.
Nevertheless, the administration has held that the prohibition does not legally apply to foreigners held overseas. They can, apparently, be treated inhumanely. This means that America is the only country in the world that asserts a legal right to engage in cruel and inhumane treatment. What this also means is that confusion about the rules becomes rampant again. With this simple amendment, we can restore clarity on a simple and fundamental question: Does America treat people inhumanely? My answer is no, and from all I've seen, America's answer has always been no.
Recent reports also indicate that the Bush administration may have employed techniques that would not be allowed under the McCain amendment. A recently concluded investigation by the CIA inspector general John L. Helgerson reportedly found that, according to a November 9 New York Times article, "interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international convention against torture, which among other things, prohibits "cruel, inhuman, or degrading treatment." From the November 9 New York Times article:
The previously undisclosed findings from the report, which was completed in the spring of 2004, reflected deep unease within the C.I.A. about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terror suspects included one known as waterboarding, and went well beyond those authorized by the military for use on prisoners of war.
The convention, which was drafted by the United Nations, bans torture, which is defined as the infliction of "severe" physical or mental pain or suffering, and prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.
The report, by John L. Helgerson, the C.I.A.'s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.
Separately, the Army Field Manual, while already available to the public, is currently undergoing revisions, as the most recent version of Field Manual 34-52, Intelligence Interrogation, was issued in 1992. Contrary to The Washington Times' suggestion that use of the field manual as an interrogation standard would reveal methods to terrorists, The New York Times reported that according to Army officials, the new interrogation manual will be accompanied by a "separate classified training document providing dozens of interrogation situations and going into exacting detail on what procedures might and might not be used." McCain noted this in his November 4 statement urging his amendment's attachment to the 2006 Defense Authorization Bill:
This amendment would establish the Army Field Manual as the standard for interrogation of all detainees held in DOD custody. The Manual has been developed by the Executive Branch for its own uses, and a new edition, written to take into account the needs of the war on terror and with a new classified annex, is due to be issued soon. My amendment would not set the Field Manual in stone -- it could be changed at any time.
From the November 9 Washington Times editorial titled "An empty amendment":
In Mr. McCain's words, the amendment "would establish the Army Field Manual as the standard for interrogation of all detainees." It further states that "no individual in the custody or under the physical control of the [U.S.] Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."
Not many would argue with that, and indeed few have. Ninety senators have already voted for it, but that's just the point. The amendment doesn't say anything that isn't already considered U.S. policy. The Army Field Manual is not exactly a classified document -- anyone can buy it at Amazon.com, including terrorists, for $12.89.