Sign-On Letter in Support of the McCain Amendment
The National Institute of Military Justice, Association of the Bar of New York City, Center for American Progress, Human Rights First, American Civil Liberties Union, Amnesty International USA, Human Rights Watch, Physicians for Human Rights and the Open Society Policy Center laud the McCain Anti-Torture Amendment.

December 16, 2005

Statement on the McCain Anti-Torture Amendment Prohibitions

The McCain Amendment is an important milestone on the road to ending torture and abusive interrogations. The Amendment bans “cruel, inhuman and degrading” treatment, including during interrogations conducted by any U.S. officials, against any detainee, anywhere in the world. It makes the U.S. Army Field Manual on Interrogation binding on all Department of Defense interrogations.

Under any good faith interpretation of the McCain Amendment a wide variety of interrogation techniques are illegal under U.S. law, including seven specific techniques reported to have been used or to be currently in use. Techniques now squarely prohibited include:

– Waterboarding

– Sleep Deprivation

– Stress Positions

– Temperature Manipulation Risking Hypothermia

– Striking Prisoners and Violent Shaking

– Using Dogs to Terrify

– Nakedness and Sexual Humiliation

As they have reportedly been practiced on U.S. detainees, these techniques are illegal under the 5th, 8th and 14th Amendments to the Constitution. They all are prohibited by the U.S. Army Field Manual on Interrogation (FM 34-52). These techniques have been routinely condemned when they have been employed by despotic regimes throughout history, and the Department of State continues to recognize them as forms of torture in its current statements and reports. Many have also been expressly recognized as torture and inherently cruel by the United States Supreme Court, the government of the United Kingdom and a unanimous Israeli Supreme Court.

Since the Nuremberg War Crimes Trials it has been understood that the notion that a person committing war crimes was “just following orders” is no longer an acceptable defense. The perpetrators and those exercising command responsibility may be charged with and convicted of war crimes. The claim of a perpetrator that he was acting in an official capacity cannot constitute a defense or a basis to mitigate punishment. Similarly a defense of superior orders is unlikely to be available in such circumstances.

No reasonable person, given the text of the McCain Amendment, the binding decisions of our Supreme Court, and common sense understandings of decency, can now consider such techniques to be permitted. Any U.S. official or employee who gets legal advice to the contrary should recognize that advice as unreasonable and contrary to law. Any U.S. official or employee who acts upon instructions, orders or purported authorization to engage in this conduct does so at his or her peril and in defiance of the will of Congress and the law. Congress should be vigilant in its oversight role with respect to implementation of the McCain amendment and should insist upon reviewing all legal opinions produced by the Administration interpreting the McCain Amendment or the ban on torture and cruel, inhuman and degrading treatment.

At the same time we are deeply concerned over reports that Congress is considering authorizing the use of information obtained through torture as evidence in legal proceedings and radically limiting habeas rights for those detained at Guantanamo Bay. The Graham-Levin-Kyl Amendment should be dropped by Congress to make clear and unequivocal a single, unified message on these issues: torture and cruel, inhuman or degrading treatment can never be tolerated in the name of the United States.

Signed,

National Institute of Military Justice

Association of the Bar of New York City

Center for American Progress

Human Rights First

American Civil Liberties Union

Amnesty International USA

Human Rights Watch

Physicians for Human Rights

Open Society Policy Center

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