Torture Ban May Have a Loophole

U.S. President George W. Bush suffered a stinging defeat Thursday when overwhelming congressional support forced him to abandon his opposition to anti-torture legislation and reach an agreement with its sponsor, Sen. John McCain, an Arizona Republican.

The president’s reversal came after months of White House attempts – led by Vice President Dick Cheney and National Security Adviser Steven Hadley – to weaken the measure, which would prohibit the "cruel, inhuman, or degrading" treatment of any detainee in U.S. custody anywhere in the world.

The administration had been negotiating with McCain to either drop the measure or to modify it so that interrogators, especially those working for the Central Intelligence Agency (CIA), would have significant exemptions.

Bush had previously threatened to veto the bill and Vice President Cheney lobbied hard to change the McCain proposal to give interrogators more flexibility to use a range of extreme tactics on terrorism suspects.

McCain, who was tortured as a prisoner of war during the Vietnam War, made it clear that he would not change a single word in his proposal. The House of Representatives voted 308 to 122 to endorse the measure, which is an amendment to the massive defense spending bill that funds military operations in Iraq and Afghanistan. The supportive vote in the Senate was 90 to 9.

But in the deal worked out with the president, McCain was willing to add two paragraphs to give civilian interrogators legal protections that are already afforded to military interrogators. This means that civilians would be able to defend their use of interrogation tactics by arguing in court that a "person of ordinary sense and understanding would not know the practices were unlawful."

However, experts say that if CIA or civilian personnel believe they were being directed to use an interrogation technique that was illegal, they would be obligated to disobey the order.

The new rules reportedly outlaw practices never before mentioned explicitly, such as forcing prisoners into stress positions and using police dogs. McCain hopes these will clarify unacceptable practices.

But he and other lawmakers are concerned that other additions to the Army’s Field Manual on interrogations – specifically, 10 new classified pages – may open a back door to condoning practices that McCain is trying to prohibit.

The president’s support came in an appearance with McCain in the Oval Office Thursday. "We’ve been happy to work with [Sen. McCain] to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention [on] torture, whether it be here at home or abroad," Bush said.

"We’ve sent a message to the world that the United States is not like the terrorists," McCain added at the joint appearance.

"We are a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are. And I think that this will help us enormously in winning the war for the hearts and minds of people throughout the world."

But the deal did not garner unanimous support. Rep. Duncan Hunter, a California Republican who is chairman of the powerful House Armed Services Committee, threatened yesterday to block the legislation unless the White House provides him with a written assurance that it would not interfere with the ability of intelligence officials to carry out their missions.

The Bush-McCain deal won applause from human rights groups.

"We’ve come a long way as a country since 9/11, and this development is a sign of that," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "We’ve gone from a sense of ‘anything goes’ to a recognition that torture hurts America even more than it hurts the enemy."

But human rights advocates were already looking beyond McCain’s victory to a separate proposed amendment by Sen. Lindsey O. Graham, a South Carolina Republican and a former military judge, which would eliminate certain rights of detainees held at the U.S. facility at Guantanamo Bay, Cuba.

The Graham amendment would prevent detainees from using U.S. courts to invoke the right of habeas corpus to contest their treatment, including claims that they have been tortured. It would also effectively allow the U.S. government to indefinitely detain people at Guantanamo based on evidence obtained through "coercion."

Tom Wilner, a lawyer who represents a group of Kuwaiti detainees at Guantanamo Bay, told the Washington Post that the Graham amendment would make McCain’s prohibition against torture essentially unenforceable, by giving U.S. troops an incentive to engage in coercive interrogations of detainees, without fear of being held liable.

The significance of the suspension of habeas corpus is likely to be a major congressional concern as debate continues.

According to Brian J. Foley, a professor at the Florida Atlantic School of Law in Jacksonville, "Our lawmakers are deluded, and are deluding us into believing, that excluding the courts from addressing prisoners’ claims about their treatment, which includes claims that they have been tortured, will somehow help us in the so-called war on terror."

"It won’t, and it can’t. Instead, allegations about torture will be both unprovable and, importantly, undisprovable, which will give propaganda fodder to our enemies."

He told IPS, "Dangerously, the executive branch will be uncheckable, which will prevent us from knowing whether the president is actually fighting terrorists or merely beating confessions out of hapless, innocent men who were rounded up near a battlefield or sold to U.S. forces for a bounty – quite possibly by the real terrorists – and simply telling us we’re ‘winning the war.’"

It is generally acknowledged that mistaken identity has been a problem at Guantanamo Bay. More than 800 prisoners were initially taken there for detention. That number is now down to slightly more than 500.

The Defense Department will not comment in detail on the disposition of those who are no longer there, but it has been widely reported that some have been sent back to law enforcement authorities in their home countries for further detention. Others have simply been released, presumably because the government had no evidence that they were terrorists.

Some continue to be held through what appears to be administrative incompetence. For example, U.S. forces freed Saddiq Ahmad Turkistani from a Taliban prison in Kandahar, Afghanistan, in late 2001. He told reporters that he had been wrongly imprisoned for allegedly plotting to kill Osama bin Laden.

He professed hatred for al-Qaeda and the Taliban – groups he said tortured him in prison – and offered to help the United States. Though cleared by U.S. officials, Turkistani was first taken to a U.S. military base in Afghanistan, and then sent to Guantanamo Bay.

Unlike many others prisoners at Guantanamo, he was not captured on the battlefield, nor was he a suspected terrorist. He was arrested in the "fog of war" that marked the early days of the U.S. war in Afghanistan. Though he was a potential ally, he found himself unable to challenge his detention.

Nearly four years later, Turkistani remains imprisoned at Guantanamo Bay, despite being cleared for release early this year after a government review concluded he is "no longer an enemy combatant."

Turkistani’s lawyers and some U.S. officials speculate that he has been held by mistake. They say he remains incarcerated because the United States simply does not know what to do with him.

Author: William Fisher

William Fisher writes for Inter Press Service.