To Oppose Torture, Senator McCain Should Support Applying the Army Field Manual Standards to the CIA

Senator John McCain has a long and distinguished record of principled opposition to torture and official cruelty. There is much in his statement of February 13 that is indisputable. For example, we agree with Senator McCain that, “The laws and values that have built our nation are a source of strength, not weakness, and we will win the war on terror not in spite of devotion to our cherished values, but because we have held fast to them.” Unfortunately, his conclusion to oppose applying the Army Field Manual to the CIA and other intelligence agencies is the wrong one. Here’s why:

Senator McCain: “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.”

Response: The Defense Intelligence Agency – which runs intelligence operations around the world – has no need to resort to any techniques beyond those described in the Army Field Manual. Neither Senator McCain nor anyone else has explained why the CIA has different requirements.

• General David Petraeus stated in a May 10, 2007 open letter to the troops: “Certainly, extreme physical action can make someone “talk;” however, what the individual says may be of questionable value. In fact, our experience in applying the interrogation standards laid out in the Army Field Manual (2-22.3) on Human Intelligence Collector Operations that was published last year shows that the techniques in the manual work effectively and humanely in eliciting information from detainees.”
• The approaches in the Field Manual were reviewed and endorsed by Director of National Intelligence — who coordinated with the CIA — as well as by the Director of the Defense Intelligence Agency, the joint staff, combatant commanders and their senior legal advisors worldwide, and each service’s secretary and Judge Advocate General.

Senator McCain: “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.”

Response One: But the CIA reportedly is using techniques that are cruel, inhuman, or degrading.

• ABC News reports there are four main techniques that have been authorized for use in the CIA program: physical assaults (“shaking,” “slapping”), hypothermia (dousing naked prisoner with cold water in room kept at 50°), stress position combined with sleep deprivation (feet shackled to floor bolt, prisoner forced to stand motionless for more than 40 hours) and waterboarding (creating what ABC News described as “a terrifying fear of drowning”). (ABC News, 11/8/05). Bush Administration officials have said that waterboarding is no longer in use, but the White House has reserved the right to use the technique in the future.
• In 2005, the CIA destroyed the tapes showing the interrogations of two high-value detainees – Abu Zubaydah and Abd al-Rahim al-Nashiri – who were reportedly subject to waterboarding, among other abuse. The tapes’ destruction is now the subject of an ongoing obstruction of justice inquiry.

Response Two: What are the additional techniques that do not violate the law that the CIA would like to use?

• If there are other techniques not included in the field manual that are lawful, humane, and effective to use against prisoners, wouldn’t Senator McCain want the military to have access to such techniques? After all, it is the military that most often finds itself in time sensitive situations where eliciting good intelligence from interrogations is crucial to saving lives.

Senator McCain: “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.”

Response: In fact, the techniques reportedly being used by the CIA are not “in accordance with law and our treaty obligations, including Geneva Common Article 3.”

• On July 20, the President issued an Executive Order on the CIA interrogation program that fails to prohibit techniques including mock-drowning, sexual humiliation, severe isolation and sensory bombardment. These techniques are prohibited by U.S. law and could subject U.S. officials who authorize or use them to criminal prosecution. (Leave No Marks: “Enhanced” Interrogation Techniques and the Risk of Criminality, Human Rights First)
• Distinguished medical experts have said: “There must be no mistake about the brutality of the ‘enhanced interrogation methods’…. Prolonged sleep deprivation, induced hypothermia, stress positions, shaking, sensory deprivation and overload, and water-boarding … can have a devastating impact….. They cannot be characterized as anything but torture and cruel, inhuman, and degrading….”[1]

Senator McCain: “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.”

Response: The Bush Administration has never provided a good faith interpretation of the statutes that guide what is permissible in the CIA program. In fact, the Bush Department of Justice has repeatedly been willing to sanction torture.

• In August 2002, a Department of Justice memo defined torture so narrowly so that only interrogation techniques which caused death or pain equal to that associated with organ failure constitute torture. Although this opinion was withdrawn in 2004 and replaced in 2005, it has never been repudiated.
• While the Department of Justice publicly declared torture “abhorrent” in a 2004 memo, it reportedly issued a secret memo several months later explicitly authorizing the use of abusive interrogation techniques – including exposure to frigid temperatures, waterboarding, and head-slapping. (Scott Shane, David Johnston and James Risen, Secret U.S. Endorsement of Severe Interrogations, New York Times, 10/4/07)
• At the same time the US Congress was acting to pass the McCain amendment (in the fall of 2005) to prohibit the use of cruel, inhuman, and degrading treatment, the Department of Justice reportedly issued another secret memo concluding that none of the CIA’s “enhanced interrogation techniques” violated this prohibition.
• In 2006, the Supreme Court stepped in, overruling the administration and concluding that all detainees are entitled to the minimal humane treatment protections found in the Geneva Conventions’ Common Article. In response, the administration – with Attorney General Mukasey’s blessing – has defined the humane treatment requirements so narrowly that even strapping someone to a board, suffocating him with water, and inducing a fear of imminent death, is humane in certain circumstances.

Senator McCain: “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.”

Response: Despite Senator McCain’s wish, the fact remains that the nation’s chief law enforcer, Attorney General Michael Mukasey, refused to declare waterboarding illegal. While he stated that it is not currently authorized for use by the CIA, he left open the possibility of its use in the future. He even refused to say that it would be illegal if used by an enemy nation in interrogations of an American.

[1] Letter to Sen. McCain, September 21, 2006, signed by Allen Keller, MD (Director, Bellevue/NYU Program for Survivors of Torture), Gerald Koocher, PhD (Pres, Am Psychological Assoc), Burton Lee, MD (Physician to Pres George HW Bush), Bradley Olson, PhD (Chair, Divisions for Social Justice, Am Psychological Assoc), Pedro Ruiz, MD (Pres, Am Psychiatric Assoc), Steven Sharfstein, MD (former President, American Psychiatric Assoc), Brig Gen Stephen Xenakis, MD (USA-Ret.), Philip Zimbardo, PhD (prof emeritus, Stanford, past Pres, Am Psychological Assoc).