No Torture Means No Torture – Why We Need the McCain-Feinstein Anti-Torture Amendment

Do we mean what we say when we ban torture? That has been a question for more than a decade, ever since President George W. Bush, on United Nations International Day in Support of Victims of Torture in September 2003, declared that “torture anywhere is an affront to human dignity everywhere” — even as his CIA agents were subjecting detainees to extended sleep deprivation, painful stress positions, slamming into walls, and waterboarding.

Yesterday, Senator John McCain, who knows of what he speaks when he talks about the horrors of torture, introduced an amendment to the FY 2016 National Defense Authorization Act, designed to ensure that indeed the United States never again engages in torture and cruel treatment of detainees in wartime. The amendment, which has an impressive list of bipartisan co-sponsors, including Dianne Feinstein, Jack Reed, and Susan Collins, would do two things: limit wartime interrogations to the tactics expressly authorized by the Army Field Manual, and guarantee the International Committee of the Red Cross access to all wartime detainees. If indeed we mean what we say when we say we abhor torture, the amendment deserves Congress’ and the administration’s unstinting support.

Some might ask why an amendment is necessary, given existing legal bans on torture and cruel treatment. The Geneva Conventions already prohibit all inhumane treatment of prisoners of war. The Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment absolutely forbids torture and cruel treatment, under all circumstances. We participated in drafting both treaties, and have ratified and implemented them as part of US law. An earlier “McCain Amendment,” made part of the Detainee Treatment Act, makes clear that the prohibition on cruel, inhuman, and degrading treatment applies to all persons detained by the United States, wherever they are detained and whatever their nationality. So isn’t this new amendment unnecessary? 

Unfortunately, it’s not. While any objective reading of existing US law would conclude that coercive interrogations are prohibited, that’s not how the existing law was interpreted in the wake of 9/11. Lawyers in the Justice Department’s Office of Legal Counsel interpreted all of the existing prohibitions on torture and cruel treatment to permit what they were plainly designed to prohibit — harsh coercive interrogation tactics, including physical assaults, stress positions, and sleep deprivation. Those memos, written between 2002 and 2007, have all been rescinded and rejected. The lesson of history is that once one allows interrogators to violate the dignity of human beings they are interrogating, serious abuse will inevitably follow.

But that lesson needs to be etched in legislation. The existing torture and cruel treatment bans include broad definitions of banned activity, and Justice Department lawyers showed that these broad bans can be willfully misinterpreted to permit what they are designed to prohibit. The Anti-Torture Amendment addresses the challenge differently. Instead of expressing a broad prohibition, it confines interrogators to a set list of expressly approved techniques. That approach, already used by the military for their interrogations, avoids ambiguity; if a technique is not affirmatively approved, it is banned. The law recognizes that interrogation tactics may develop over time, and envisions that the Army Field Manual will be updated from time to time, subject to public notice. And given the existing broad bans, the Army Field Manual could not affirmatively authorize any tactic that constitutes torture or cruel, inhuman, or degrading treatment. But by limiting interrogations to specified techniques, the law would take away the wiggle room that allowed the United States for at least five years to engage in officially approved tactics that the world recognizes as torture and cruel treatment. And by guaranteeing ICRC access to all wartime detainees, the law ensures that there is a mechanism to keep interrogators honest.

The bill has received bipartisan endorsement not only in Congress, but also from former interrogators and a group of retired generals and admirals. David Keene, former President of the National Rifle Association and editorial page editor of the Washington Times, and I have also written a letter supporting the bill.

When Senator McCain was pressing passage of his earlier amendment on torture, he maintained that this debate was not about who they are, but about who we are. The same can be said of the Anti-Torture Amendment. We have learned that existing law can be misinterpreted to permit what it was designed to bar. If we are to be true to the commitments we have already made, Congress should pass the Anti-Torture Amendments. 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).