On June 16, the U.S. Senate passed the bipartisan McCain-Feinstein Amendment to the National Defense Authorization Act of 2016, banning the use of torture and other cruel and degrading treatment of prisoners and requiring the U.S. to abide by the Army Field Manual on Interrogations.
Sen. John McCain, who was tortured as a prisoner of the war in Vietnam, said, “I believe past interrogation policies compromised our values, stained our national honor and did little practical good.” He added that the amendment “provides greater assurances that never again will the United States follow that dark path of sacrificing our values for our short-term security needs.”
The amendment passed the Senate 78-21. It codifies into law President Barack Obama’s 2009 executive order banning the use of enhanced interrogation techniques against detainees. Before the vote, Sen. Dianne Feinstein spoke about the need for the amendment because, she said, the order is “only guaranteed for as long as a future president agrees” to leave it in place.
The Guardian recently released documents revealing that the CIA’s torture practices also broke the agency’s own rule on human experimentation, which states that research should not occur without a subject’s express consent. The documents showed that medical doctors and psychologists were actively involved in the CIA operations as well.
Principles of international law on torture were codified in the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and implemented via domestic legislation in the United States. The treaty defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a confession. It also prohibits parties from extraditing (transferring) a person to another state “where there are substantial grounds for believing” that s/he would be in danger of being subjected to torture. By transferring several suspects to countries where they were tortured, the U.S. blatantly violated this convention.
On Dec. 9, 2014, the Senate Intelligence Committee released part of a report about the CIA’s use of various forms of “enhanced interrogation techniques.” The entire report, which took five years to complete, remains classified, but its key findings and executive summary comprise 525 pages. It revealed that CIA officials provided false or misleading information about classified programs and that more detainees were subjected to harsh interrogation techniques and more forms of torture than was previously known.
Although the harsher methods were for a long time justified by the Bush administration as not violating the Torture Convention, more recently the Obama administration has acknowledged that they constituted torture. For example, then-attorney general nominee Loretta Lynch said during her confirmation hearing, “Waterboarding is torture … and thus, illegal.”
The U.N. Committee Against Torture has questioned whether the U.S. has conducted a complete and impartial investigation of allegations of CIA mistreatment of detainees held at overseas locations. And on June 23, the president of the American Bar Association, William C. Hubbard, sent a letter to Attorney General Lynch calling on the administration “to undertake a new, comprehensive review and accounting of all available evidence and, if warranted, to initiate ‘appropriate proceedings against any person who … committed, assisted, authorized, condoned, had command responsibility for, or otherwise participated in such violations.'” He also urged the administration to clarify and acknowledge that the Convention Against Torture applies extraterritorially, “wherever the United States exercises de jure or de facto control.”
The logic of justifying the use of torture in order to prevent a possible attack by terrorists is flawed. The ticking-time-bomb excuse has serious shortcomings: What if the suspect does not have the information or would rather die than tell, or the source is wrong, or the information given is false? Our traditions and values demand that we recognize past mistakes and unequivocally uphold our obligations under the convention and the rule of law.
Ved P. Nanda (vnanda@law.du. edu) is director of the Ved Nanda Center for International Law at the University of Denver.
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