CommentaryJURIST Contributing Editor Mary Ellen O’Connell of Notre Dame Law School says passing the McCain Amendment prohibiting coercive interrogation practices would be an important step forward towards re-establishing America's reputation for respecting the rule of law, and could open the door to prosecutions of senior officials who, far beyond lying, have authorized the cruel, inhuman, and degrading treatment of fellow human beings…
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Scooter Libby has just been indicted for perjury, lies and obstructing justice in a case related to manipulating intelligence on Iraq. Despite this, the White House is at it again. Now it is manipulating facts to win support for an unlawful and immoral policy on interrogation. Using confidential briefings to Congressmen and other tactics, Vice President Cheney, David Addington, and some in the White House Counsel’s office are trying to make a case for the necessity of using cruel, inhuman and degrading treatment to gather intelligence.
There is no necessity to use such tactics. In fact, they are counter-productive. Even more importantly they are unlawful, and, most importantly, they are immoral.[*] By now the White House pro-abuse group should have no credibility whatsoever. Members of Congress should not believe their claims. The public record is clear on the lawful, moral and effective way to conduct interrogation.
Senators John McCain, Lindsey Graham and John Warner are fully aware of that public record and have sponsored legislation to ensure that the America does interrogation right. The Senate, by overwhelming majority (90-9), passed the McCain Amendment to the Defense Appropriation Bill on October 5. The Amendment mandates that no individual under the physical control of the U.S. government may be subjected to cruel, inhuman, or degrading treatment and that persons in U.S. military detention will be interrogated according to the Army’s Field Manual on Interrogation.
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Topic: It is no surprise the Amendment received such overwhelming support: It simply restates the already binding law forbidding cruel, inhuman or degrading interrogation techniques by anyone, anywhere. The Bush Administration’s infamous “torture memos,” may have confused some interrogators about the law. The Amendment ends the confusion.
The Amendment also ensures that all interrogations with a connection to the Department of Defense follow a uniform set of standards as set out in the Army Field Manual. The Senators want to prevent future crises like the one at Abu Ghraib prison in Iraq where a variety of military and civilian interrogators (as well as prison guards, translators, and other military and civilian personnel) were either unclear about the rules or followed different rules in interrogating the same people.
Professor John Yoo, an author of several of the torture memos, writing in an op-ed in USA Today (Nov. 2, 2005) states, however, that the McCain Amendment would not have prevented Abu Ghraib because the abuses “resulted from sadistic behavior on the ‘night shift’ and were illegal.” This is pure disinformation. We now have thousands of pages of reports from the media, the International Committee of the Red Cross, and even Department of Defense investigators that abuse of detainees has been widespread, has occurred day and night, and has occurred most often pursuant to interrogation. Here is just one finding from the report by Generals Faye and Jones into the abuse of Abu Ghraib: “The CIA conducted unilateral and joint interrogation operations at Abu Ghraib. The CIA’s detention and interrogation practices contributed to a loss of accountability and abuse at Abu Ghraib. No memorandum of understanding existed on the subject of interrogation operations between the CIA and CJTF-7, and local CIA officers convinced military leaders that they should be allowed to operate outside the established local rules and procedures.” Executive Summary b. (4).
The McCain Amendment will mandate that all interrogators with a connection to the Department of Defense use lawful and consistent techniques. There is really nothing to object to in the Amendment and everything to applaud. Yet the White House has threatened to veto it. Senator Ted Stevens of Alaska, apparently at the behest of Vice President Cheney, instead of fighting for his colleagues’ Amendment in the Senate-House conference committee is talking about more flexibility for the CIA. Why? More flexibility for the CIA will not solve the problem of differing standards during interrogation. Rather it will open the door for continued confusion over the intent of Congress and risk further abuse in violation of US and international law.
In fact, the Army Field Manual as currently written is a sound guide to the existing law and, according to many experienced interrogators, the best practice on interrogation. The current Army techniques are time-tested as to both their legality and effectiveness. Using them insulates interrogators from criminal and civil liability in this country and abroad, while providing them with the techniques they need to effectively perform their mission. (Professor Yoo also absurdly mischaracterizes Army interrogation techniques.)
Diluting the McCain Amendment will not change the law, but it will send the wrong signal to CIA interrogators that they can flout the law. Members of Congress who go along with the argument for different rules or more flexibility for the CIA are doing a serious disservice to the Agency’s interrogators and to the U.S.
Since the beginning of the global war on terror, the administration in Washington has consistently engaged in interrogation and prisoner handling practices that have been at odds with the international legal norms to which it subscribes. It is a dark irony that these unlawful practices are also counterproductive to efforts to gain reliable intelligence on terrorist operations. From a practical point of view, it is well understood among top interrogators that abusive interrogation techniques produce intelligence that must be considered unreliable. In addition, these tactics have now led to the deaths of many in our custody.
In the words of a highly-experience and successful United State Army interrogator:
Such behavior not only c
auses needless suffering for the victim and is criminal, it jeopardizes the intelligence collection effort. Once a prisoner has been abused, gaining his or her willing cooperation is often impossible, even for a highly-skilled interrogator. In addition, any information gained during such an interrogation cannot be regarded as dependable or reliable.
The Administration has publicly claimed that it has gotten useful information using coercive and abusive tactics at Guantánamo. One of the FBI e-mails from Guantánamo Bay, released in December 2004, however, states “These tactics have produced no intelligence of a threat neutralization nature to date.”
The more important it is to get information and the faster we need it, the better to use the most reliable methods. Studies of effective interrogation show consistently that the best way to get information is to use highly trained and talented interrogators who can gain the trust of the interrogee. It is unclear why the Vice President is so confident that abuse is effective. But, then, the Vice President was confident that Saddam had weapons of mass destruction, and he was confident that we did not need as many troops in Iraq as his top generals said we did. The Vice President has been tragically wrong and he is wrong again. Every time we fail to get information through these counter-productive techniques, we endanger the lives and well being of American servicemen and women and our national security. Daily we weaken our right to demand humane treatment at the international law standard for our own people if captured and on behalf of victims of abuse the worldover.
And then there is the larger problem of counter-productivity. Not only is coercive interrogation unreliable, societies known to use torture, coercion and abuse have not resolved their problems with terrorism. Societies that have abandoned such practices or never used them in the first place have had greater success.
The McCain Amendment should put a stop to unlawful practices. It is also an important step forward to re-establishing our reputation as a proud, moral nation that respects the rule of law. As Senator McCain has said, this country is now known as a nation that tortures and abuses and no longer as a champion of human rights.
After passing the McCain Amendment, the next step on our road to redemption should be the prosecution of high-ranking civilian and military personnel who have violated the law by ordering or authorizing unlawful interrogation tactics. If Scooter Libby can be indicted for lying, others can and should be indicted for cruel, inhuman and degrading treatment.
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* This Forum is based on Mary Ellen O’Connell, "Affirming the Ban on Coercive Interrogation," 66 Ohio State Law Journal (forthcoming 2005) available at http://ssrn.com/abstract=811046.)
Mary Ellen O’Connell holds the Robert & Marion Short Chair in Law at Notre Dame University
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