Alasdair Palmer on how the White House is trying to defeat Senator McCain’s anti-torture Bill
America is starting to get anxious again about its use of ‘aggressive interrogation’. The more usual name for what the Americans have been doing to some of the people they think are terrorists is ‘torture’. When the pictures from Abu Ghraib first became public 18 months or so ago, they caused a flurry of agonised self-examination among senior officials in the country’s armed forces and intelligence services. That quickly passed when it was decided that what happened in Abu Ghraib wasn’t officially sanctioned.
Now, however, something much more serious than Abu Ghraib worries the administration: the growing Congressional campaign to pass a law which will make it absolutely unambiguous that any form of torture by US personnel is absolutely prohibited.
Until now the Bush administration’s lawyers have been able to argue that neither the US Constitution nor any US statute prevents the use of torture — sorry, ‘aggressive interrogation’. But that will change if Senator McCain’s Bill becomes law. McCain’s Bill would prohibit any member of any branch of US armed forces or intelligence services from ever going beyond the techniques laid out in the army Field Manual on interrogation. That manual was crafted around the Geneva Convention. It prohibits all forms of ‘cruel, inhuman or degrading treatment’ — under which it includes not merely all forms of physical contact, but the use of threats, offers and lies to induce detainees to talk.
McCain’s Bill passed the Senate by 90 votes to 9. The majority included 46 Republicans, who defied President Bush to vote with McCain (who is himself a Republican). Support for McCain’s proposal has been spurred by the growing body of evidence indicating that as many as 29 people have been not merely tortured, but tortured to death, by US personnel in Afghanistan and Iraq. The people doing the torturing (interestingly, the torturers include a significant number of women) have not been the bungling, grinning amateurs, the perverts and sadists of Abu Ghraib so memorably described as ‘Animal House on the night shift’. They are America’s ‘expert interrogators’, the trained professionals who were supposed to be in full control of themselves and to treat detainees ‘humanely’ at all times.
There are several documented cases of torture during interrogations conducted by Americans which have resulted in the deaths of the interrogated. For example: the case of two Afghan detainees referred to only as Dilawar and Habibullah. Those two cases resulted in a 2,000-page report from the army.
Dilawar and Habibullah were picked up near Camp Bagram in Afghanistan in December 2003 and questioned there. The Americans thought they were responsible for rocket attacks on Camp Bagram. It is agreed on all sides that Habibullah and Dilawar were on the receiving end of ‘aggressive interrogation’ and that they did not survive the experience. The immediate cause of each detainee’s death was a heart attack — a heart attack caused, according to their autopsies, by ‘blunt force injuries to the lower extremities’. Dilawar’s legs had, according to one doctor who examined his body, ‘basically been pulpified’. Another coroner noted that she’d only ‘seen similar injuries in an individual who has been run over by a bus’.
Last month six American soldiers were either convicted or pleaded guilty to involvement in the maltreatment which led to those two deaths. No one, however, has been identified as responsible for either of the two homicides. The punishments meted out so far have been minor; they have ranged from a couple of months’ imprisonment to reduction in rank and deprivation of a proportion of pay.
There are other documented examples of suspects being tortured to death by the Americans. The army, and the administration, has tried to distance itself from all of them by insisting that if soldiers or intelligence officials occasionally went too far, it was because of ‘inadequate supervision’; they were never officially encouraged, or officially allowed, to start torturing anyone, still less to beat them to death.
But that’s not how it looks to Senator McCain and those who support him. McCain insists that the President’s failure to instruct America’s armed forces and security agencies to adhere rigorously to the Geneva Convention for all captured prisoners has put US interrogators at the top of a slope down which, inevitably, some of them have slipped. It was that ‘lack of clarity’ over where to draw the line which, McCain says, led to the maltreatment which has resulted in the deaths. His Bill re-instates the clear and unambiguous line between the humane techniques of interrogation and the rest.
Senator McCain’s credentials as a spokesman against torture are impeccable; he served in Vietnam, and was captured by the Vietcong and tortured by them. When he says that ‘to carve out legal exemptions that would permit cruel, inhumane or degrading treatment risks opening the door to abuse as a matter of course’, people, including Republican Congressmen, listen. Were it not for the vehement opposition of the Bush administration, the McCain Bill would certainly become law.
The President and his acolytes are adamant that if they lose the power to use ‘aggressive interrogation techniques’, they will lose the power to protect America against the next 9/11. President Bush would probably veto the Bill if it came to it.
The administration hopes that it has come up with a proposal which will lead to McCain’s Bill being abandoned. The department of defence (DoD) surprised and puzzled a lot of people when it issued a directive on 7 November which specifically bans any government employee from using any form of torture. The directive states that ‘all intelligence interrogations, debriefings or tactical questioning to gain intelligence from captured or detained personnel shall be conducted humanely.... Acts of physical or mental torture are prohibited.’ The directive bans all of the departures from the Geneva Convention and the army Field Manual which Senator McCain and his supporters insist have led to US interrogators torturing their detainees to death.
What is going on? Has the Bush administration suddenly decided that it was wrong all along: torture is never justified? That is not the most plausible explanation for the apparent U-turn on an issue seen by President Bush as critical. One lawyer in the US army explained it to me like this: ‘The Pentagon has put out the new directive not to stop the practice of torture, but so that it can retain the power to torture people.’
That may sound paradoxical — but actually it’s pretty straightforward. If Congress enacts a statute based on McCain’s proposal, then the Pentagon will be legally obliged to abide by it. If it doesn’t, DoD people will be criminally prosecuted and end up in jail. But if there is only a DoD directive — and no statute — then the secretary of defence will be left with the authority to override the directive’s provisions when he sees fit. He’ll be able to issue individual exemptions and exceptions — and he will be able to keep those exemptions secret.
If the administration’s subterfuge fails to prevent Senator McCain’s Bill from becoming law, however, it will not put an end to America’s involvement in torture. What is likely to happen is an intensification of the CIA’s programme of ‘rendition’: exporting suspected terrorists back to their native countries, and leaving them to the tender mercies of Syrian, Jordanian or Egyptian interrogators. That cannot be good news for anyone who wants to d iminish the amount of agonising and cruel torture in the world.