BY ARSALAN SULEMAN
On October 5, 2005 the Senate, by a powerful 90-9 vote, approved an amendment sponsored by Senator John McCain (R-AZ) that intends to place certain prohibitions on the torture policies approved by the Bush administration in interrogating terrorism-related detainees. In classic Bush administration style, the White House threatened to veto the bill despite the Senate’s overwhelming display of bipartisanship. McCain’s amendment should be championed, as it would provide considerable clarity as to the illegality of torture techniques now in operation in places like Guantanamo Bay and U.S.-controlled facilities in Iraq. However, even if the amended bill passes both houses of Congress, the Bush administration’s addiction to torture will likely continue. Slight gaps in the applicability of the amendment will still allow the White House to torture detainees, albeit with greater effort on their part.
McCain’s amendment does two things: 1) when dealing with persons under detention in DOD facilities or persons in the DOD’s custody or effective control, it only allows those interrogation techniques that are explicitly approved for use in the Army Field Manual on Intelligence Interrogation; and 2) it affirms that no person in the custody or physical control of the United States shall be subject to cruel, inhuman, or degrading treatment, regardless of their nationality or physical location on the globe. On its face, this amendment would definitely apply to detainees held in Guantanamo, other American military facilities, and U.S.-controlled detention facilities in Iraq and Afghanistan. In facilities controlled by the DOD (like Guantanamo), the Army Field Manual would provide complete and final clarity as to the available methods of interrogation. The bill would also specifically overrule the Administration’s legal opinion that the Convention Against Torture does not apply outside territory under U.S. jurisdiction. Thus, the bill would now clarify that all persons held in any facility controlled by the U.S. government anywhere in the world would be legally guaranteed protection from cruel, inhuman, and degrading treatment as prohibited by the Convention Against Torture and the Fifth, Eighth, and Fourteenth amendments to the Constitution.
Despite the significant impact this bill would have on limiting torture, there are holes that would allow the practice to continue. First, the limitations of the Army Field Manual would only apply to persons in DOD control or in DOD facilities. Thus, if it is a CIA facility, or if the person is in the effective control of the CIA, the Army Field Manual would provide no limitations. If in CIA control or custody, however, the minimum protection against cruel, inhuman, and degrading treatment would apply. Second, the Army Field Manual can be changed, though Congress would have to be notified of any such change in advance. Third, and most dangerous of all, the shady and covert practice of rendition would completely circumvent the proposed protections. If the detainee is in the custody or physical control of another government, then he could be subject to torture; and even if American agents are involved, the detainee would still lack protection under U.S. law. Given the White House’s clear desire to use torture techniques, the administration would have an incentive to transfer to other countries any detainees that they feel should be subject to torture. Given some of the horror stories that have already come out from such renditions, it is easy to foresee the continued practice of torture as American policy through the increased use of rendition.
Senator McCain deserves much credit for his work on this amendment, as do the 89 other Senators that voted with him. Clarity regarding interrogation techniques and the applicability of the prohibition on cruel, inhuman, and degrading treatment will greatly benefit the detainees, our national morality, and the armed forces, as they have thus far been unable to maintain discipline and control in an atmosphere of ambiguous leadership regarding the limits of interrogation techniques and detention conditions. Hopefully, the House and Senate can agree on language that would keep all of the substantive protections included in McCain’s amendment. Better still would be an enforced ban on the practice of rendition. Regardless, the administration’s threatened veto reveals the wide chasm between the White House and the rest of the America on the issue of torture. Perhaps a veto override would provide the embarrassing intervention needed to make the Bush administration recognize its shameful torture addiction.
Arsalan Suleman, 2L, is from Kenner, LA.