Torture, as President George W. Bush clearly knows, is against the law. The administration keeps reasserting this point because the US torture saga keeps deepening.
Under fire for the “enhanced interrogation techniques” employed in secret CIA jails and at Guantánamo Bay, Bush rejoined that the US faces an enemy “that lurks and plots and plans and wants to hurt America again. And so, you bet, we’ll aggressively pursue them, but we’ll do so under the law.” He hastened to add: “We do not torture.”
In fact, the US does torture. This is confirmed not just by the International Committee of the Red Cross, but also by FBI agents who were privy to interrogations, and US soldiers who have served in Iraq, Afghanistan and Cuba.
Torture is prohibited and criminalized under US federal and military laws, as well as international treaties. In 1994, Congress ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The convention clearly states: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”
But, not long after the attacks of September 11, 2001, the Bush administration, most prominently Vice President Dick Cheney and his staff, was tempted to disregard those strong legal prohibitions as irrelevant to the “new paradigm.” Their disdain for the rule of law led to authorization of “enhanced interrogation techniques”—sleep deprivation, intimidation with military dogs, and sexual humiliation—that are commonly denounced as torture, or tantamount to it.
The Senate’s fight to ban these techniques, led by Sen. John McCain (R-AZ), is not just about the morality or effectiveness of torture and not just about shoring up America’s sagging reputation abroad. It is about keeping the president accountable to the law and about defending the rule of law itself.
The universally recognized baseline standard for the treatment of prisoners (including “unlawful combatants”) is Geneva Convention Common Article 3, adopted in 1949 and subsequently incorporated into the US Uniform Code of Military Justice. Article 3 says that detained persons “shall in all circumstances be treated humanely.” Therefore, certain specified acts “are and shall remain prohibited at any time and in any place whatsoever” including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
The Bush administration ignored the legal prohibitions, 50 years of military practice and the warnings by top military lawyers that this would be a disaster. If the excuse was that our enemies were “the worst of the worst,” the license to perpetrate torture and inhumane treatment mutated into the brutalization and degradation of run-of-the-mill prisoners at Guantánamo, and later, at Abu Ghraib. It has also led to the prosecution of over 100 US soldiers.
In October, McCain introduced an amendment that would ban torture and bring all interrogations conducted anywhere in the world by US agents back within the rubric of the law. The Senate voted 90-9, with many Republicans bucking the White House, to pass the amendment. In response, Vice President Dick Cheney is leading the White House effort to maintain an exemption for the CIA from the limitations on interrogation tactics McCain’s measure would impose.
The right not to be tortured is a universal, inalienable human right. While, under some circumstances like defensive wars, a state may legally kill, there is no circumstance—not one—which allows a state to practice torture. When the Bush administration created a category of persons protected neither by the Geneva Conventions nor US courts, they stripped those persons of their human rights.
The McCain amendment against torture and dehumanizing treatment does not, therefore, simply give voice to America’s better angels. To reverse the Bush administration’s erosion of prohibitions against torture is to affirm that, in the United States, no one is above the law, and no one is outside the protections of the law.