Op/Ed

Alfred McCoy on How Not to Ban Torture in Congress
by MWC Editor At Large Tom Engelhardt

Alfred McCoy, an expert on the CIA and its history of torture, has some actual news -- the sort that's been sitting unnoticed right in front of our collective, reportorial eyes. Last year's clash between John McCain and the Bush administration over the senator's successful attempt to attach a ban on torture and other abusive interrogation techniques to the Defense Appropriations Bill was heavily reported. After all, it was a heroic tale of a man -- himself tortured pitilessly earlier in his life -- who held off the powers-that-be, rejected their attempts to amend his ban, and finally triumphed by a handy margin in Congress. The ban, now in place, is the law. End of story. Only one problem, reality turns out to lurk in the fine print -– and the McCain amendment has some striking fine print that mainstream reporters failed to attend to; in fact, McCoy tells us, it has a loophole big enough to absolve torturers of their acts and, in combination with an amendment by Senator Lindsey Graham, drive testimony obtained by torture directly into our courts. I would call that news.

While the torture debate is somewhat in abeyance in the United States right now, it continues in Europe. There, a major scandal brews over the ways in which Eastern European countries were used as CIA secret prison sites, European citizens and others were kidnapped from European soil, and CIA "extraordinary rendition" flights used European air space and airports. All this, by the way, seems to have happened with the support of various European intelligence services which, by the evidence, may work as much for the Bush administration as for their own governments.

The Council of Europe has deputized Swiss prosecutor Dick Marty to conduct an extensive investigation of both alleged CIA "black" sites and Agency rendition flights. His preliminary report to the Council on January 22 concluded, albeit tentatively, that six Agency aircraft had, since 2001, made 800 rendition flights -- a level of covert activity far beyond anything reported in the U.S. press. Marty is under significant pressure to get to the bottom of this scandal, which may end up producing more torture headlines on both sides of the Atlantic. Moreover, various American media outlets continue to investigate the torture story, insuring occasional bombshells like ABC TV's sensational November 18 story detailing CIA "waterboarding" techniques and its December 5 exposé of the locations of secret CIA prisons in Poland and Romania.

Finally, it's well known that only those in the lowest ranks of the military are being held in any way accountable for torture practices mandated from the top and overseen by top civilian, military, and intelligence officials. Even at the lowest levels, accountability has proved, at best, a moving target, as is clear from the most recent torture case tried in this country. After Iraqi Maj. Gen. Abed Hamed Mowhoush voluntarily surrendered in November 2003, he was tortured with rubber hoses by "Iraqi nationals, reportedly in the employ of the CIA," while Chief Warrant Officer Lewis E. Welshofer Jr., 43, of the U.S. Army looked on. Mowhoush then suffered other mistreatment before he fell into Welshofer's waiting hands. Welshofer has since used the Nuremberg defense -- that he was just following orders in coming up with "creative interrogation techniques" to make Mowhoush talk –- to explain his subsequent actions. He forced Mowhoush, face-first, into a sleeping bag, wrapped him in electrical wire, and sat on the 57-year old prisoner's chest. After twenty minutes, Mowhoush was dead.

Recently, Welshofer faced American military justice for his crimes. While tried on murder charges, he was convicted only of the lesser counts of negligent homicide and dereliction of duty. These still carried a maximum three-year prison sentence and dismissal from the service (which would have denied him his pension). In the end, however, a military jury sentenced Welshofer to no prison time and only a formal reprimand. He was given 60 days restriction to his home, office, and church; and a forfeiture of $6,000 -- apparently the going rate for an Iraqi life. No one in our self-professed "no-torture" administration thought this worth a comment.

The American Empire Project series I co-edit has just published McCoy's newest book, A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror. I can testify that, while the book's focus is grim indeed -- a half-century-plus history of CIA torture research and how it was applied globally -- it is also, simply put, riveting to read. It offers a window into an almost unknown world that we ignore at our peril. I could not recommend it to all of you more strongly. To get a taste of its early sections, check out McCoy's previous Tomdispatch piece (from which the book developed) or read a Buzzflash review of the book. Tom

Why the McCain Torture Ban Won't Work

The Bush Legacy of Legalized Torture
By Alfred W. McCoy

Just before Christmas, two of the world's most venerable legislative bodies engaged in erudite, impassioned debate over what the right balance should be between the imperatives of national security and international prohibitions on torture. They arrived at starkly divergent conclusions that reveal the depth of damage the war on terror is doing to this country's civil liberties.

On December 7, the House of Lords, reviewing cases in which a dozen Muslim militants were to be deported, spoke with moral clarity on the issue of torture, branding it "an unqualified evil" which should have no place in the proud, thousand-year tradition of British justice. Just a week later, the U.S. Senate amended the Defense Appropriations Bill to prohibit the "abuse" of detainees in American custody, including the many Muslims at our Guantanamo prison, but did so on the purely pragmatic, almost amoral grounds that it "leads to bad intelligence." Under pressure from the White House, the senators also loaded this legislation with loopholes that may soon allow coerced testimony -- extracted through torture -- into American courts for the first time in two centuries.

This disconcerting contrast is but one sign that, under the Bush administration, the United States is moving to publicly legitimate the use of torture, even to the point of twisting this congressional ban on inhumane interrogation in ways that could ultimately legalize such acts. And following their President's lead, the American people seem to be developing a tolerance, even a taste, for torture.

This country may, in fact, be undergoing an historic shift with profound implications for America's international standing. It seems to be moving from the wide-ranging but highly secretive tortures wielded by the Central Intelligence Agency during the Cold War decades to an open, even proud use of coercive interrogation as a formal weapon in the arsenal of American power, acceptable both to U.S. courts and the American people.

In the early years of its war on terror, the administration maintained the long-standing yet informal executive policy of ordering clandestine CIA torture in times of crisis. Minutes after his public address to a shaken nation on September 11, 2001, President Bush barked to his aides, "I don't care what the international lawyers say, we are going to kick some ass."

As administration lawyers translated these words into formal directives, they carefully cloaked this otherwise unlawful demand in three controversial constitutional arguments -- that the president's commander-in-chief powers allow him to override all laws and treaties; that U.S. anti-torture laws can be stretched to provide a winning legal defense for any CIA interrogator accused of torture; and most tenuously of all, that the detainee prison at Guantanamo Bay in Cuba was not on American territory and so was beyond the writ of U.S. courts.

Two years later, when the infamous photos from Iraq's Abu Ghraib prison exposed the administration's illegal interrogation tactics in lurid color, the White House was faced with an historic choice that, in practice, proved no choice at all: either definitively ban torture or defy the international community by promoting the practice.

Bartering Away Legal Birthrights

That the upper deliberative bodies of the United States and Great Britain found themselves facing the question of torture at exactly the same moment had a certain ironic appropriateness. After all, the two countries share a secret history of torture reaching back to the dark early days of the Cold War. In 1951, these two nations collaborated in a covert CIA-run mind-control research project into which the American government ultimately poured several billion dollars. Late in that decade, CIA scientists elaborated that research into a revolutionary new form of torture, more psychological than physical, that would prove both legally elusive and highly destructive to the human psyche.

Even though this "no-touch" psychological form of torture generally did greater lasting damage than its physical variant, it was surrounded by an appealing scientific aura and was, at least in theory, devoid of the obvious signs of brutality that might trouble the public and provide telling evidence for prosecutors.

For the next 20 years, Washington deployed these torture techniques against communists and other revolutionaries in Asia and Latin America. Simultaneously, London used them to fight nationalists in its far-flung territories during the long, bloody eclipse of the British empire -- in places like Aden, Brunei, British Guiana, and Northern Ireland.

In 1978, charged before the European Court of Human Rights with torturing IRA suspects, Britain swore "a solemn undertaking" that it would never again deploy these psychological torture techniques. Last month, in reversing the deportations of Muslims convicted on "evidence procured by torture inflicted by foreign officials," London's law lords cited this case in ruling that "bedrock moral principle" from centuries of common law and recent international conventions made torture anathema in the country's courts.

By contrast, confronted with strong evidence of detainee abuse at Abu Ghraib and Guantanamo, the Bush White House has fought back by defending torture as a presidential prerogative and so precipitating an epic political struggle in this country. As a powerfully symbolic state practice, synonymous with brutal autocrats, torture, even of the few, raises profound moral and legal questions about the limits of presidential power, the quality of our justice, and ultimately the character of this American civilization.

While the Bush White House has protected and promoted senior officials implicated in the torture scandal, an ad hoc civil-society coalition of courts, media, and human rights groups has mobilized to stop the abuse. In June 2004, the Supreme Court ruled in a landmark case, Rasul v. Bush, that the Guantanamo detainees were indeed on U.S. territory, no matter what the administration's lawyers claimed, and so deserved access to American courts. This decision prompted some of the country's top law firms, working pro bono, to file 160 habeas corpus cases on behalf of some 300 Guantanamo detainees.

Last summer, Senator John McCain proposed an amendment to the must-pass Defense Appropriation Bill that would ban all "cruel, inhumane and degrading" treatment of detainees and set the U.S. Army Field Manual as the standard for any interrogation, whether by the military or the CIA. President Bush reacted by vowing to veto the bill, should it somehow pass the Republican-controlled Congress.

When Bush's bluff failed, the White House began lobbying for the insertion of loopholes into the proposed prohibition. First, Vice President Cheney pressed McCain to exempt the CIA from his ban. The senator refused. Next, National Security Adviser Stephen Hadley weighed in, urging broad legal exemptions for CIA torturers. Again, the senator stood his ground. Suddenly, Secretary of Defense Donald Rumsfeld's Pentagon rewrote the Army Field Manual to teach interrogators, as the New York Times reported, "how to walk right up to the line between legal and illegal interrogation" -- changes one Defense official termed "a stick in McCain's eye."

To placate the White House, McCain eventually softened his prohibition by adding a legal defense for accused CIA and military interrogators that mimes the extreme exculpatory logic of the Justice Department's notorious August 2002 Bybee memo. Drafted to protect CIA interrogators after 9/11, this now-disavowed document argued that torture, as defined under U.S. law, required that the suffering inflicted "be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In a section of McCain's amendment called "Protection of United States Government Personnel," the final legislation opened a little noticed but similarly cavernous legal loophole for future torturers. It allowed U.S. officials "engaging in specific operational practices that involve interrogation of aliens" to claim, if charged, that they "did not know that the practices [they used] were unlawful."

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