Torture and Executive Power

^{See also: Torture and the Waterboarding Debate}

Photo: Pool / Getty Images.

On Saturday, President George W. Bush vetoed a bill that would have banned the CIA from using waterboarding and other forms of torture.

But the bill is being described in two radically different ways.

What the Bill Actually Says

What we refer to as "the torture ban" is section 327 of the much larger H.R. 2082, the Intelligence Authorization Act for Fiscal Year 2008. This is the full text of section 327:

SEC. 327. LIMITATION ON INTERROGATION TECHNIQUES.

(a) Limitation- No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.

(b) Instrumentality Defined- In this section, the term `instrumentality', with respect to an element of the intelligence community, means a contractor or subcontractor at any tier of the element of the intelligence community.

Section 327 is not the only part of the bill that Bush found objectionable, but it is the most interesting part of the bill and the only part of the bill that directly confronts the controversial issue of torture. It doesn't specifically ban waterboarding, but the use of waterboarding is prohibited in the Army Field Manual. Under Section 327, CIA interrogations would need to be conducted in a manner consistent with section 34-52 of the Manual. Chapter 1 of FM 34-52, for example, includes a prohibition against the use of force:

The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor. condoned by the US Government. Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear. However, the use of force is not to be confused with psychological ploys, verbal trickery, or other nonviolent and noncoercive ruses used by the interrogator in questioning hesitant or uncooperative sources.

The psychological techniques and principles outlined should neither be confused with, nor construed to be synonymous with, unauthorized techniques such as brainwashing, mental torture, or any other form of mental coercion to include drugs. These techniques and principles are intended to serve as guides in obtaining the willing cooperation of a source. The absence of threats in interrogation is intentional, as their enforcement and use normally constitute violations of international law and may result in prosecution under the UCMJ.

Additionally, the inability to carry out a threat of violence or force renders an interrogator ineffective should the source challenge the threat. Consequently, from both legal and moral viewpoints, the restrictions established by international law, agreements, and customs render threats of force, violence, and deprivation useless as interrogation techniques.

But this isn't everything the Army Field Manual has to say about interrogations. Even within chapter 1, for example, there is a paragraph that requires interrogators to use "patience and tact":

The interrogator must have patience and tact in creating and maintaining rapport between himself and the source, thereby, enhancing the success of the interrogation. Additionally, the validity of the source's statements and the motives behind these statements may be obtainable only through the exercise of tact and patience. Displaying impatience encourages the difficult source to think that if he remains unresponsive for a little longer, the interrogator will stop his questioning. The display of impatience may cause the source to lose respect for the interrogator, thereby, reducing his effectiveness. An interrogator, with patience and tact, is able to terminate an interrogation and later continue further interrogation without arousing apprehension or resentment.

The chapter also urges interrogators to follow through on promises and keep detailed reports:

The interrogator must maintain credibility with the source and friendly forces. Failure to produce material rewards when promised may adversely affect future interrogations. The importance of accurate reporting cannot be overstressed, since interrogation reports are often the basis for tactical decisions and operations.

And this is just the first chapter; FM 34-52 contains nine.

McCain's Response

Senator John McCain (R-AZ), 2008 Republican presidential nominee, is himself a torture victim and regarded as a firm and consistent opponent of torture. His response to the bill probably makes the strongest case against it:

During conference proceedings, conferees voted by a narrow margin to include a provision that would apply the Army Field Manual to the interrogation activities of the Central Intelligence Agency. The sponsors of that provision have stated that their goal is to ensure that detainees under American control are not subject to torture. I strongly share this goal, and believe that only by ensuring that the United States adheres to our international obligations and our deepest values can we maintain the moral credibility that is our greatest asset in the war on terror.

That is why I fought for passage of the Detainee Treatment Act (DTA), which applied the Army Field Manual on interrogation to all military detainees and barred cruel, inhumane and degrading treatment of any detainee held by any agency. In 2006, I insisted that the Military Commissions Act (MCA) preserve the undiluted protections of Common Article 3 of the Geneva Conventions for our personnel in the field. And I have expressed repeatedly my view that the controversial technique known as "waterboarding" constitutes nothing less than illegal torture ...

When, in 2005, the Congress voted to apply the Field Manual to the Department of Defense, it deliberately excluded the CIA. The Field Manual, a public document written for military use, is not always directly translatable to use by intelligence officers. In view of this, the legislation allowed the CIA to retain the capacity to employ alternative interrogation techniques. I'd emphasize that the DTA permits the CIA to use different techniques than the military employs, but that it is not intended to permit the CIA to use unduly coercive techniques - indeed, the same act prohibits the use of any cruel, inhumane, or degrading treatment.

Similarly, as I stated after passage of the Military Commissions Act in 2006, nothing contained in that bill would require the closure of the CIA's detainee program; the only requirement was that any such program be in accordance with law and our treaty obligations, including Geneva Common Article 3.

The conference report would go beyond any of the recent laws that I just mentioned - laws that were extensively debated and considered - by bringing the CIA under the Army Field Manual, extinguishing thereby the ability of that agency to employ any interrogation technique beyond those publicly listed and formulated for military use. I cannot support such a step because I have not been convinced that the Congress erred by deliberately excluding the CIA. I believe that our energies are better directed at ensuring that all techniques, whether used by the military or the CIA, are in full compliance with our international obligations and in accordance with our deepest values. What we need is not to tie the CIA to the Army Field Manual, but rather to have a good-faith interpretation of the statutes that guide what is permissible in the CIA program.

This necessarily brings us to the question of waterboarding. Administration officials have stated in recent days that this technique is no longer in use, but they have declined to say that it is illegal under current law. I believe that it is clearly illegal and that we should publicly recognize this fact.

In assessing the legality of waterboarding, the administration has chosen to apply a "shocks the conscience" analysis to its interpretation of the DTA. I stated during the passage of that law that a fair reading of the prohibition on cruel, inhumane, and degrading treatment outlaws waterboarding and other extreme techniques. It is, or should be, beyond dispute that waterboarding "shocks the conscience."

It is also incontestable that waterboarding is outlawed by the Military Commissions Act, and it was the clear intent of Congress to prohibit the practice. The MCA enumerates grave breaches of Common Article 3 of the Geneva Conventions that constitute offenses under the War Crimes Act. Among these is an explicit prohibition on acts that inflict "serious and non-transitory mental harm," which the MCA states "need not be prolonged." Staging a mock execution by inducing the misperception of drowning is a clear violation of this standard. Indeed, during the negotiations, we were personally assured by administration officials that this language, which applies to all agencies of the U.S. government, prohibited waterboarding.

It is unfortunate that the reluctance of officials to stand by this straightforward conclusion has produced in the Congress such frustration that we are today debating whether to apply a military field manual to non-military intelligence activities. It wold be far better, I believe, for the administration to state forthrightly what is clear in current law - that anyone who engages in waterboarding, on behalf of any U.S. government agency, puts himself at risk of criminal prosecution and civil liability.

I think McCain's response is inadequate, and I'll say why below, but I will concede his central point: The current legislation seems to be yet another piece of the Democratic Congress' legislative agenda that was written to produce an enforceable veto. Had the bill simply applied FM 34-52(1)'s prohibition on the use of force to CIA interrogations, for example, then that would have banned waterboarding and other torture techniques. But why apply the entire Army Field Manual to CIA interrogations? There is no reason why CIA officials should not be able to lie to, or break promises to, suspected terrorists. We have not discussed the issue of whether the CIA should be allowed to practice brainwashing. Certainly the CIA is under no obligation to observe "patience and tact," or to follow FM 34-52(3)'s linear interrogation structure, or to keep military-style records. The objective of the bill should be to ban torture. All torture, including "torture-lite" techniques. Period.

Why McCain is Still Wrong

At the same time, however, McCain tipped his hand by suggesting that the executive branch's interpretation of the DTA should be deciding factor vis-a-vis what constitutes torture. This means that he holds to an interpretation of executive power in which banning torture becomes very difficult. If there is room for executive interpretation, room for a president to decide (for example) that waterboarding isn't really torture and therefore isn't really illegal, then it's hard to say that passage of the DTA accomplished anything at all.

If all John McCain intended to say was that a McCain administration would decide not to use torture in the way that the Bush administration has, because he would choose to interpret the DTA in a more restrictive manner, then he's speaking as a presidential candidate, not as a legislator. That isn't terribly surprising, considering the timing of all this, but if he's really committed to outlawing torture on a long-term basis, focusing on administration-specific differences in interpretation isn't good enough. Really banning torture would necessitate binding changes in policy--with impeachment-worthy criminal charges attached, and a means of allowing for independent investigation of such charges. I'm not sure Congress is ready to take that step yet. But unless and until it does, it's hard to say that any bill--the DTA or H.R. 2082--would really "ban" torture.

See also:

• Is Torture (Ever) Justified?
• American Torture Techniques
• Torture and False Confessions