Unlawful practices sour intelligence

November 10, 2005|By ROBERT KENNEDY AND MARY ELLEN O'CONNELL

The Senate, by 90-9, passed the McCain amendment to the Pentagon's budget bill. It mandates that no individual under the physical control of the U.S. government may be subjected to cruel, inhuman or degrading treatment and that people in U.S. military detention will be interrogated according to the Army rules in its Field Manual on interrogation.

The amendment simply restates the already binding law forbidding cruel, inhuman or degrading interrogation techniques by anyone, anywhere. The infamous "torture memos" may have confused some interrogators about the law. The amendment ends the confusion.

The other part of the amendment ensures that all interrogations with a connection to the Pentagon follow a uniform set of standards.

Sen. John McCain, a Republican from Arizona, and other sponsors want to prevent further crises like the one at Abu Ghraib prison in Iraq, where a variety of military and civilian interrogators (as well as prison guards, translators, and other military and civilian personnel) were either unclear about the rules or followed different rules in interrogating the same person. A number of U.S. personnel are now serving prison sentences in part because of the confusion at Abu Ghraib.

So there is really nothing to object to. Yet the White House has threatened to veto any such amendment. Alaska Sen. Ted Stevens, a Republican, apparently at the behest of Vice President Dick Cheney, instead of fighting for his colleagues' amendment in the Senate-House conference committee, is talking about exempting the CIA from the amendment. Why?

More flexibility for the CIA will not solve the problem of differing standards during interrogation. Rather it will open the door for continued confusion over the intent of Congress and risk further abuse in violation of U.S. and international law.

In fact, the Army Field Manual is a sound guide to the existing law and, according to many experienced interrogators, the best practice on interrogation. Current Army techniques are time-tested as to both their legality and effectiveness. Using them insulates interrogators from criminal and civil liability in this country and abroad, while providing them with the techniques they need to effectively perform their mission.

Diluting the McCain amendment will not change the law but will instead send the wrong signal to CIA interrogators that they can flout the law. When Mr. Stevens says he wants different rules or more flexibility for the CIA, he is doing a serious disservice to the agency's interrogators and to the United States. He is not changing the national or international law that prohibits such techniques.

For more than a half century, the United States has led in establishing an international order devoted to advancing the common good. The United Nations, the World Bank, the International Monetary Fund, NATO, human rights, and extending the rule of law as an international norm have been among America's contributions to the post-World War II order. For its efforts, the United States has been seen as a moral authority and a force for good. In turn, it has gained the respect and admiration of nations and people around the world.

Unfortunately over the past 4 1/2 years, U.S. policies have undermined the good will created by successive American administrations. Since the beginning of the global war on terror, the Bush administration has consistently engaged in interrogation and prisoner handling practices that have been at odds with the international legal norms to which it subscribes.

It is a dark irony that these unlawful practices are also counterproductive to efforts to gain reliable intelligence on terrorist operations. They may well endanger the lives and well-being of American servicemen and women, are repugnant to the American people and the international community and undermine America's stature and moral authority in the world. Acceptance of Mr. Stevens' changes to the McCain amendment will put one more nail in America's coffin as world leader.

It is well understood among top interrogators that abusive interrogation techniques produce intelligence that must be considered unreliable.

The McCain amendment provides the clarity necessary to ensure that U.S. forces and officials follow internationally recognized standards to which the United States has subscribed, as well as existing U.S. law. It supports the continued moral authority of the United States to demand of others respect for the law by everyone in future conflicts. It sends a signal to the world that we are serious about such scandalous behavior as that reported from Abu Ghraib, Bagram and Guantanamo Bay.

The American people should not be fooled by the administration's Orwellian "doublespeak" that calls the proposed changes an "augmentation" to the McCain amendment. Their design is to dilute, if not fully undo, efforts by both Republican and Democratic senators to ensure that America's war on terrorism is effective and consistent with U.S. values.

By diluting the McCain amendment, Congress would be abdicating its responsibility to make it absolutely clear that under no circumstances does the United States condone the use of cruel, inhuman and degrading measures.

Robert Kennedy, a former senior Pentagon official, is a professor at the Sam Nunn School at Georgia Tech. Mary Ellen O'Connell holds the Robert and Marion Short Chair in Law at the University of Notre Dame.

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