Do we really need to be "cruel, inhuman or degrading" to win the war on terror? Apparently the Bush Administration thinks so.
When John McCain proposed an amendment to a military appropriations bill that would comprehensively ban such tactics, the Administration threatened to veto it. Now that ninety senators, including forty-six Republicans, have voted for it, and Colin Powell and the Catholic bishops have all endorsed it, the Administration has shifted to a stealth strategy. It asks only for an exemption for the CIA, or deletion of the provision that the ban applies abroad. But those proposals would effectively gut the amendment, as its principal legal effect is precisely to bind the CIA in its actions overseas. And as Dana Priest's chilling November 2 Washington Post account of secret CIA detention and interrogation centers, known as "black sites," makes clear, this is no abstract debate.
In 1994 the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits such treatment under all circumstances, specifically including "a state of war." But after 9/11 the Administration argued that the ban does not apply to foreign nationals being held and interrogated abroad. It reasoned that when Congress ratified the treaty, it provided that these terms should be interpreted to prohibit conduct that would violate the Constitution – that is, conduct that "shocks the conscience." Since the Administration contends that the Constitution does not extend to foreign nationals outside our borders, it maintains that neither does the ban on cruel, inhuman and degrading treatment.
This interpretation runs against the central purpose of the Torture Convention, which is to protect all human beings, regardless of location and nationality. And it transforms what Congress plainly intended as a substantive definition of prohibited treatment into a territorial exception that affords government officials carte blanche to engage in conduct that includes, according to reported US practices, sexual humiliation, use of dogs to terrorize prisoners, sleep deprivation, extended exposure to extreme temperatures, forced nudity, waterboarding and mock burials.
The military is already barred from such conduct by the Uniform Code of Military Justice, which prohibits cruelty and maltreatment. The CIA is not governed by the military's rules, however, so the amendment's principal contribution is to impose such limits on nonmilitary interrogators acting abroad. To exempt the CIA, or to limit the statute to domestic interrogations, would not only rob the amendment of virtually all its bite. It would actually make existing law worse by providing Congressional authorization for cruel, inhuman and degrading treatment in certain circumstances. Right now the authority for such action is a highly dubious executive interpretation; the proposed exemptions would give this questionable interpretation legislative approval.
The CIA does not need this exemption. As Priest reveals, the CIA began operating secret detention centers for illegal interrogations only after 9/11. For 200 years our government has gathered invaluable intelligence without resorting to tactics that treat human beings worse than dogs. And as the Army Field Manual on Intelligence Interrogation expressly states, "Use of force is a poor technique, as it yields unreliable results."
Even if inhuman treatment might induce a suspect to talk in a specific case, such methods are difficult to control and in the long run ill-advised, as the migration of such abuses from Guantánamo to wider use in Iraq demonstrates. These tactics ultimately undermine our security, as they impair our legitimacy and create ideal recruiting tools for the enemy. It is simply immoral to claim that we can inflict on other countries' nationals cruel and inhuman treatment that would not be tolerated if it were imposed on our own citizens.
If we are to prevail in the war on terror, we must do so by distinguishing ourselves from our enemy. Terrorism is a moral evil because to achieve its ends it brutally disregards the value of human life. Torture and cruel, inhuman and degrading treatment are evil for the same reason. As John McCain said, this is not about who they are, "this is about who we are."
By David Cole
Reprinted with permission from the The Nation