It's About Us

Vol. 33 No. 1

By

Editor’s Note: The following article is adapted from an October 5, 2005, statement Senator McCain (R-AZ) gave on the floor of the U.S. Senate and subsequently inserted into the Congressional Record.

On December 30, 2005, President George W. Bush signed into law the Fiscal Year 2006 Defense Appropriations Bill, which included McCain’s amendment to prohibit the use of “cruel, inhuman or degrading treatment” against any individual in the custody or physical control of the United States. Adopted by overwhelming majorities in both houses of Congress, the McCain amendment also established the Army Field Manual as the binding set of rules for all military interrogations. With his signature, however, President Bush also issued a “signing statement” in which he reserved a right to apply the McCain provisions consistent with his authority as commander in chief to protect national security.

I recently received a letter from Captain Ian Fishback, a member of the 82nd Airborne Division at Fort Bragg and a veteran of combat in Afghanistan and Iraq. For more than seventeen months he struggled to get answers to a basic question from his chain of command: What standards apply to the treatment of enemy detainees? But he found no answers. In his remarkable letter, he pleads with Congress, asking us to take action, to establish standards, to clear up the confusion—not for the good of the terrorists, but for the good of our soldiers and our country. The captain closes his letter by saying, “I strongly urge you to do justice to your men and women in uniform. Give them clear standards of conduct that reflect the ideals they risk their lives for.” I believe that the Congress has a responsibility to answer this call—a call that has come not just from this one brave soldier but from so many of our men and women in uniform.

We owe it to them. We sent them to fight for us in Afghanistan and Iraq. We placed extraordinary pressure on them to extract intelligence from detainees. But then we threw out the rules that our soldiers had trained on and replaced them with a confusing and constantly changing array of standards. We demanded intelligence without ever clearly telling our troops what was permitted and what was forbidden. And then, when things went wrong, we blamed them and we punished them. We have to do better than that.

I can understand why some administration lawyers might want ambiguity, so that every hypothetical option is theoretically open, even those the president has said he does not want to exercise. But war does not occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty, we cannot hide our heads, pulling bills from the floor and avoiding votes. We owe it to our soldiers, during this time of war, to take a stand.

To fight terrorism, we need intelligence. That much is obvious. What should also be obvious is that the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women. To do differently would not only offend our values as Americans, but undermine our war effort because abuse of prisoners harms—not helps—us in the war on terror. First, subjecting prisoners to abuse leads to bad intelligence because under torture a detainee will tell his interrogator anything to make the pain stop. Second, mistreatment of our prisoners endangers U.S. troops who might be captured by the enemy—if not in this war, then in the next. Third, prisoner abuses exact on us a terrible toll in the war of ideas because inevitably these abuses become public. When they do, the cruel actions of a few darken the reputation of our country in the eyes of millions. American values should win against all others in any war of ideas, and we cannot let prisoner abuse tarnish our image.

And yet reports of detainee abuse continue to emerge, in large part, I believe, because of confusion in the field as to what is permitted and what is not.

Interrogation and the Army Field Manual

The Army Field Manual on Interrogation and its various editions have served America well, through wars against regular and irregular foes. It embodies the values Americans have embraced for generations, while preserving the ability of our interrogators to extract critical intelligence from ruthless enemies. Never has this been more important than today, in the midst of the war on terror.

The Army Field Manual authorizes interrogation techniques that have proven effective in extracting life-saving information from the most hardened enemy prisoners. It is consistent with our laws and, most im­portant, our values. Let us not forget that al-Qaeda sought not just to destroy American lives on September 11, but American values—our way of life and all we cherish. We fight to preserve our lives and liberties, but also American values, and we will never allow the terrorists to take those away. In this war that we must win—that we will win—we must never simply fight evil with evil.

I therefore have proposed establishing the Army Field Manual as the standard for interrogation of all detainees held in Department of Defense (DOD) custody. The manual has been developed by the executive branch for its own uses, and a new edition, written to take into account the needs of the war on terror and with a new classified annex, is due to be issued soon. My proposal would not set the Field Manual in stone—it could be changed at any time.

The advantage of basing a standard for interrogation on the Field Manual is to cut down on the significant level of confusion that still exists regarding which interrogation techniques are allowed. The Armed Services Committee has held hearings with a slew of high-level DOD officials, from regional commanders to judge advocate generals to the DOD’s deputy general counsel. A chief topic of discussion in these hearings was what specific interrogation techniques are permitted in what environments, with which DOD detainees, by whom, and when. And the answers have included a whole lot of confusion. If the Pentagon’s top minds cannot sort out these matters after exhaustive debate and preparation, how do we expect our enlisted men and women to do so?

Confusion about the rules results in abuses in the field. We need a clear, simple, and consistent standard, and we have it in the Army Field Manual. That is not just my opinion, but that of many more distinguished military minds than mine. Twenty-eight former high-ranking military officers support my proposal, including General Joseph Hoar, who commanded the U.S. Central Command; General John Shalikashvili, former chairman of the Joint Chiefs of Staff; Rear Admiral John Hutson and Rear Admiral Don Guter, who each served as the Navy’s top judge advocate general; and Lieutenant General Claudia Kennedy, who served as deputy chief of staff for Army Intelligence. These and other distinguished officers believe that the abuses at Abu Ghraib, Guantanamo, and elsewhere took place in part because our soldiers received ambiguous instructions, which in some cases authorized treatment that went beyond what the Field Manual allows, and that, had the manual been followed across the board, we could have avoided the prisoner abuse scandal.

Cruel, Inhumane, and Degrading Treatment

The prohibition against cruel, inhumane, and degrading treatment has been a longstanding principle in both law and policy in the United States.

The Universal Declaration of Human Rights, adopted in 1948, states simply, “No one shall be subject to torture or cruel, inhuman or degrading treatment or punishment.” The International Covenant on Civil and Political Rights, to which the United States is a signatory, states the same. The binding Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, negotiated by the Reagan administration and ratified by the Senate, was entered into force in 1987. On last year’s DOD authorization bill, the Senate passed a bipartisan amendment reaffirming that no detainee in U.S. custody can be subject to torture or cruel treatment, as the United States has long defined those terms. All of this seems to be common sense, in accordance with longstanding American values.

But since last year’s DOD bill, a strange legal determination was made that the prohibition in the so-called Convention Against Torture against “cruel, inhuman or degrading treatment” does not legally apply to foreigners held outside the United States. They can, apparently, be treated inhumanely. This is the administration’s position, even though Judge Abe Soafer, who negotiated the Convention Against Torture for President Reagan, said in a recent letter that the Reagan administration never intended the prohibition to apply only on U.S. soil.

What all this means is that America is the only country in the world that asserts a legal right to engage in cruel and inhumane treatment. But it is not necessary because the administration has said that it will not engage in cruel, inhumane, or degrading treatment as a matter of policy. What this also means is that con­fusion about the rules becomes rampant again. Our many differing legal standards and loopholes have confused our lawyers and generals—just imagine the potential confusion of our troops serving in prisons and the field.

I therefore have further proposed simply codifying what is current policy and reaffirming what was assumed to be existing law for years. In light of the administration’s stated commitment, it should require no change in our current interrogation and detention practices. What it would do is restore clarity on a simple and fundamental question: Does America treat people inhumanely? My answer is no, and from all I have seen, America’s answer has always been no.

Let me note that I hold no brief for the prisoners. I do hold a brief for the reputation of the United States of America. We are Americans, and we hold ourselves to humane standards of treatment of people, no matter how evil or terrible they may be. To do otherwise undermines our security. It also undermines our greatness as a nation. We are not any other country. We stand for something more in the world—a moral mission, one of freedom and democracy and human rights at home and abroad. We are better than these terrorists, and we will we win. The enemy we fight has no respect for human life or human rights. They do not deserve our sympathy. But this is not about who they are. This is about who we are. These are the values that distinguish us from our enemies.

 

As published in Human Rights, Winter 2006, Volume 33, Number 1, p.20-22.

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