By JAMES ROSEN
November 17, 2005
No one inside or outside the Bush administration is publicly claiming the right to commit clear acts of torture while questioning suspected terrorists - acts such as pulling out fingernails, burning detainees, starving them or holding a gun to their head.
Instead, Vice President Dick Cheney and others want to reserve the right for intelligence agents to use less extreme, though still disturbing, procedures.
Sen. John McCain, over Bush administration protests, wants to implement a single set of acceptable interrogation practices for foreign detainees that would ban not only torture, but also less severe "cruel, inhumane and degrading" practices.
The dispute acquired fresh urgency last week when the Pentagon released a new, eight-page directive on conducting humane interrogations, while questions emerged from within the CIA over procedures approved by the spy agency in the wake of the Sept. 11 attacks.
Congressional passage of a massive defense spending bill has stalled over a McCain amendment that would require U.S. intelligence agents to obey the same interrogation limits as military personnel, spelling out which techniques are permitted and which ones are prohibited.
While much of the reporting on McCain's amendment has focused on torture, the real points of contention between him and the Bush administration lie in a vast, gray middle area encompassing dozens of "enhanced interrogation techniques."
Many of those techniques - ranging from making a prison fear imminent drowning (called "waterboarding") to depriving him of sleep or forcing him to stand in one position for long periods - are not clear-cut examples of torture. Yet, they are not legal law enforcement techniques and are in most cases prohibited by U.S. military codes, which led to the prosecution of military police and contract interrogators over the Abu Ghraib abuses.
"No individual under the physical control of the (U.S.) government, regardless of nationality or physical location, shall be subjected to cruel, inhumane or degrading treatment or punishment," the amendment states.
McCain, an Arizona Republican who endured torture as a prisoner of war in Vietnam, made his proposal largely in response to the international outcry last year over photographs of U.S. soldiers abusing Iraqi inmates at the Abu Ghraib prison.
"Nothing hurt us more, that I can think of, than the Abu Ghraib pictures that ran 24-7 on Al-Jazeera (the Arab satellite TV network) and harmed us enormously in the world," McCain said in an interview Thursday. "And I do believe that a clear and firm commitment on the part of the United States government that we will not only not torture, but we will not treat people in a cruel or inhumane fashion is absolutely vital. Otherwise, it's difficult for young people to differentiate between ourselves and our adversaries."
With most Republican senators breaking ranks with the White House, the Senate voted 90-9 last month in favor of McCain's amendment. Under intense pressure from Cheney and other administration officials, the House has put off voting on the amendment, blocking the defense spending bill.
The current impasse is over whether CIA and other intelligence operatives should also be prohibited from using such tactics, especially while questioning senior al Qaeda and other terrorist leaders held in secret locations around the world.
"You bet, when we capture terrorist leaders, we are going to seek to find out information that will ... prevent attacks from happening in the first place," White House press secretary Scott McClellan told reporters last week during a series of heated exchanges on topic. "But we have an obligation to do so."
While President Bush has said repeatedly in recent days that the United States does not condone or practice torture, Cheney is leading an intense behind-the-scenes drive to block McCain's amendment from becoming law.
Soon after the Sept. 11, 2001, attacks, Bush said the United States had entered a new kind of war on terror that would be fought under new rules against an enemy unaligned with specific countries and fighting outside clear national boundaries.
Defense Secretary Donald Rumsfeld sparked an outcry when he said that U.S. interrogations of terrorist suspects at the Guantanamo Bay, Cuba, military prison would not necessarily have to follow the Geneva Conventions or other international war-crimes law because al-Qaeda fighters don't belong to a conventional army.
Over the last four years, the Justice Department and Defense Department have issued a series of changing, sometimes conflicting guidelines on interrogations. Bush has vowed to follow "the spirit of the Geneva Conventions," if not the letter of the post-World War II international laws.
"I have been frantically searching for some kind of compromise, and I have yet to come up with one," McCain said. "We're either going to have a blanket, uniform standard or we're not."
Current and former CIA officials say the difficulty in reaching a compromise lies in a shadowy legal realm called "cruel, inhumane or degrading" treatment of detainees - or CID, as it is often called in intelligence circles.
"This president has said we don't torture, but he hasn't gotten into specifics," said John Radsan, who served as CIA assistant general counsel from 2002 to 2004 and now teaches at the William Mitchell College of Law in St. Paul, Minn. "We haven't figured out how the administration measures torture and what it considers torture to be."
The difficulty, Radsan said, lies in categorizing practices that fall short of outright torture.
"We haven't answered the tough questions," Radsan said. "What about sleep deprivation? That's unpleasant, but it's a lot less nasty than hooking people up to electrodes or pulling out their teeth. Are hoods, by themselves, torture? I'm not sure. German shepherds attacking someone - to me, that gets close to torture if it's not already there. But what about bringing in dogs with muzzles because you think the prisoner doesn't like dogs. I find all of this stuff abominable, but torture has to have a definition."
McCain is seeking to revise the Army manual on interrogations and apply it to intelligence as well as military personnel. He would spell out which procedures are permitted and which are banned, even going so far as to classify that portion of the manual in order to prevent potential enemy combatants from training to resist specific techniques.
"Everybody talks about torture, and torture in some ways is in the eye of the beholder, obviously," McCain said. "But I'm also talking about cruel and inhumane treatment. ... I just think that it should be very clear."
Mike Ritz, who taught interrogation methods at Fort Bragg, N.C., while serving in the Army from 1991 to 1999, said it is essential to keep secret the precise limits military and intelligence interrogators observe while questioning detainees.
"The most powerful tool for an interrogator is the fear of the unknown," Ritz said. "We can't outline every single detail about what we're willing to do or not willing to do. We would be laying out our entire arsenal to our enemy."
Radsan is preparing a law review article in which he proposes that Congress create a special court to help solve the problem.
Modeled after the Foreign Intelligence Surveillance Act court, which Congress set up in 1978 to authorize wiretaps of U.S. citizens in specific circumstances, the courts envisioned by Radsan would consider secret requests from the CIA and other intelligence agencies to detain and interrogate terrorist suspects outside the criminal justice system.
Such courts, in Radsan's view, could respond quickly to urgent requests for temporary waivers of interrogation limits, while ensuring accountability and congressional oversight.
"We shouldn't be doing this just on the president's say-so," Radsan said. "But if Congress is on board, we may need to make some exceptions, with safeguards, to allow more aggressive interrogations."
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