WASHINGTON, Dec. 15 (UPI) -- The White House Thursday agreed to anti-torture legislation it threatened to veto, ending a months-long battle with Arizona Republican Sen. John McCain.
"We've sent a message to the world that the United States is not like the terrorists," McCain said at the White House Thursday. "We are ... a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are."
The deal with White House came after McCain agreed to give civilian interrogators the same legal defense that military interrogators would be allowed if accused of violating the ban on cruel, inhumane or degrading treatment: that they were following what a reasonable person would believe was a lawful order.
"Taking language from the Uniform Code of Military Justice, we provide (civilian interrogators) with legal counsel and certain protections that a reasonable person might view as carrying out of orders, not to contradict the Nuremberg decision, which, of course, said that obeying orders is not a sufficient defense," said McCain at the White House Thursday.
"It's very limited," said Elisa Massimino, the Washington director for Human Rights First, an advocacy group that has worked in support of the McCain amendment. "It doesn't apply to policy makers. It only applies to the (interrogator) in the room."
The McCain legislation, appended to the Senate versions of the 2006 defense authorization and appropriations bills, would set an unambiguous standard for interrogation and prisoner treatment against which a "reasonable person" could judge an interrogator's actions. That would not have been a possible test, otherwise: the Bush administration approved a tangled web of torture definitions and interrogation rules in the wake of the Sept. 11 terrorist attacks that anyone could argue they genuinely believed they were following orders. Several of the soldiers prosecuted for the abuse of prisoners at the Abu Ghraib jail told courts they believed they were doing what was asked of them.
"The whole issue is it is all been so confused," said Massimino in an interview with United Press International Thursday as President George W. Bush was meeting with McCain and Sen. John Warner (R-Va.). "McCain's amendment says 'this is the standard' so everyone is operating from the same baseline."
"They've been scribbling like graffiti all over the standard (of prisoner treatment as set forth in the Geneva Conventions.) This is like a big eraser for all that stuff. The (Army) field manual is the rule for military. Civilians are bound by the ban on cruel treatment, period. This obliterates the convoluted interpretation of the treaty. It doesn't matter where you are in the world. It says, 'this is who we are,'" Massimino said.
There is no exemption for the CIA or other non-military organizations from the prohibition on cruel and inhumane standards, which the White House reportedly sought, and over which it threatened a veto.
The road to the McCain amendment -- which has yet to be passed by the House of Representatives -- is a long and tortuous paper trail. It began shortly after the Sept. 11 attacks when the White House determined prisoners captured in Afghanistan and elsewhere in the world would not be covered by the Geneva Conventions, and would be imprisoned at Guantanamo Bay Naval Base, Cuba. Gitmo, as it is called, was selected because the administration determined it was outside the reach of U.S. courts, which would allow the military to hold prisoners indefinitely without charges.
At the same time, the Patriot Act established Gitmo as a special maritime territorial jurisdiction which meant that the U.S. law prohibiting torture would not apply. The law prohibits torture by U.S. government agents only outside the United States; special territories are considered to be inside the country.
In January 2002, the White House requested a legal memo on interrogation standards for people detained in the "global war on terror." In the subsequent memo crafted by now federal Judge Jay S. Bybee, the test for torture was made very stringent: It was limited to pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
That was reversed in December 2004, when the Justice Department issued a new memo defining torture as physical suffering "even if it does not involve severe physical pain," although it must be more than "mild and transitory." Temporary mental suffering is included under certain circumstances under the new torture definition. Under the 2002 opinion, such suffering would have had to last for months or years to amount to torture.
An Aug. 1, 2002, memo from the Justice Department said torturing suspected al-Qaida members overseas "may be justified." It also said international laws against torture "may be unconstitutional if applied to interrogation" conducted against suspected terrorists.
In late 2002, the Navy's Criminal Investigative Service threatened to abandon the Guantanamo Bay jail interrogation operation because of the abuse of some detainees. Its objections helped force the Pentagon to review the interrogation techniques used there that stretched the limits of the Army's field manual on interrogation.
That review yielded in March 2003 a 55-page memo that discussed potential legal defenses if a service member was accused of torture at Guantanamo Bay because of the expanded interrogation techniques approved by a Pentagon working group.
The White House and Gonzales have denied that the documents are policy recommendations. Rather, White House spokesman Scott McClellan told the Washington Post they were legal analyses crafted for the edification of the president and military as it confronted an untraditional enemy.
Later in 2003 when the Iraq insurgency became more virulent, officials from Guantanamo Bay visited Baghdad to discuss the interrogation and detention techniques that were producing results at the Cuban prison -- techniques that were outside the boundaries of the Geneva Conventions' prohibition on cruel, inhumane and degrading treatment. Shortly thereafter in Iraq the Abu Ghraib prison abuse scandal occurred. It was revealed in January 2004 by a soldier.
The Abu Ghraib revelations eventually forced the release of the torrent of so-called torture memos.
Bush said Thursday he is pleased with the new policy, and said it makes clear to the world that the U.S. government does not torture.
The Army is set to publish a new field manual on interrogation grounded in the Geneva Conventions which will have a classified annex describing in detail both approved and verboten techniques in interrogation.
"Practices like waterboarding, stress positions, sleep deprivation and hypothermia are off the table," said Massimino.
She credited McCain's success in swaying the White House in part to the strong backing of active duty and retired military leaders, organized by Human Rights First, who wrote letters of support, made public statements and pressed lawmakers behind the scenes for a clear anti-torture standard.
"They really turned this debate from something that was about whether you are willing to sacrifice your morality to get information from a terrorist to what our troops deserve, in order to keep them safe" from torture if they are captured, she said.