Interrogators Beware
Stephen Rickard, Director of the Washington Office of the Open Society Institute discusses the Military Commissions Act of 2006 and whether the new law authorizes or criminalizes brutal interrogations.

October 17, 2006

This piece appeared in the Washington Post on October 17th, 2006. Click here to view it on the Washington Post website, registration required.

On rare occasions, President Bush and his toughest critics agree on something. That will happen today when Bush signs the Military Commissions Act, while claiming “clear” authorization from Congress for “enhanced” CIA interrogations. Many critics claim the bill authorizes torture. Fortunately, both sides are wrong.

You can’t blame the CIA for demanding clear authorization. It reportedly was using waterboarding (a terrifying mock execution in which a prisoner is strapped to a board and convinced he is being drowned), dousing naked prisoners with water in 50-degree cold and forcing shackled prisoners to stand for 40 straight hours.

Should the CIA be worried? Yes. The United States has prosecuted every one of these techniques as a war crime. So when Congress passed the McCain amendment last fall banning cruel treatment, CIA interrogators reportedly stopped working. Vice President Cheney had sought an exemption for the CIA — but didn’t get one. The administration apparently pushed the interrogators hard to resume their tactics, saying these techniques were still legal, but the CIA refused.

It seems the agency had learned an important lesson from the infamous Justice Department “torture memo,” which claimed that to be deemed “torture” a procedure had to be capable of causing major organ failure or death. The administration repudiated the memo when it became public. The lesson? Secret, contorted legal opinions don’t provide any real protection to CIA officers.

So the CIA demanded “clarity” — from Congress. No wonder President Bush practically sprinted to the cameras to begin spinning his “compromise” with Sen. John McCain (R-Ariz.) on the Military Commissions Act. He needs to convince CIA interrogators that they now have congressional carte blanche.

They don’t. In fact, if they yield to White House pressure to renew brutal interrogations, they will be at greater risk than they were last fall.

The bill’s language on torture is far from perfect, and it has many other objectionable provisions. It should have been rejected. But on its face it criminalizes cruel treatment. An interrogator can go to prison if a court finds that the techniques used caused “serious” mental or physical “suffering,” which need not be “prolonged.” According to Sen. Lindsey Graham (R-S.C.), the administration agrees that this rules out waterboarding.

As for hypothermia, prolonged sleep deprivation and stress positions, does the CIA really want to put that question to a jury? Legions of highly qualified experts would line up to testify that these techniques cause severe, prolonged suffering. The CIA knows this. It funded some of the seminal studies on the subject.

As for Congress, administration supporters made general claims about the importance of continuing “the program” and its legality. But Graham said specifically that the bill “reined in the [CIA] program.” McCain said it can be interpreted to mean that “extreme deprivation — sleep deprivation, hypothermia and others — would be not allowed.” Sen. John Warner (R-Va.) said that such abusive techniques are “clearly prohibited by the bill.”

“Reined in,” “not allowed,” “clearly prohibited” — that’s from the bill’s Republican sponsors in the Senate. The House was no more supportive. The chairman of the Armed Services Committee, Rep. Duncan Hunter (R-Calif.), said it is “absolutely false” to claim that the bill authorizes the “enhanced” techniques. Another senior House Republican, Rep. Christopher Shays of Connecticut, said that “any reasonable person” would conclude that the CIA’s techniques “clearly cause ‘serious mental and physical suffering.’ ” That’s congressional approval?

Another inconvenient fact for the White House: The bill emphatically reaffirmed the McCain amendment — the law that led the CIA to demand clear authorization in the first place.

The Bush administration has been pushing the idea that the McCain amendment is infinitely elastic, banning only what “shocks the conscience” — that no technique is prohibited if interrogators need the information badly enough. Under this preposterous theory, Japanese Americans could have been tortured after Pearl Harbor if authorities thought it would reveal an imminent attack on the West Coast. It’s really “in the eye of the beholder,” said Cheney.

But if a CIA interrogator is indicted after this administration leaves office, it will not matter whether keeping a naked prisoner standing for 40 straight hours shocks Dick Cheney. It will matter whether it shocks the court.

U.S. courts know cruelty when they see it, even if the Bush Justice Department doesn’t. The Supreme Court agreed decades ago that sleep deprivation “is the most effective torture” and said that “the blood of the accused is not the only hallmark of an unconstitutional inquisition . . . the efficiency of the rack and the thumbscrew can be matched . . . by more sophisticated modes of ‘persuasion.’ ”

The administration is trying to convince CIA officers that they won’t be indicted — or at least convicted. But the CIA demanded clarity, not more ambiguity and “plausible deniability.”

At the end of the day all the president can honestly tell CIA interrogators is this: “The law has some loose language. We’ll give you another memo. Don’t worry.”


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