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 Sen. 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
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 Jan. 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 Nov. 18 story detailing
CIA "waterboarding" techniques and its Dec. 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 20 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
On Dec. 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" that 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
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
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 Sept.
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.
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 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
Last summer, Sen. 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
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
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."
After the Senate passed McCain's torture ban by a resounding 90-9 vote, ending
any hope of a presidential veto, the administration tried to further neutralize
its impact by backing an amendment
authored by Republican Sen. Lindsey Graham of South Carolina. As originally
drafted, this amendment would have allowed the courts to consider all evidence
collected under any but the most outrageous uses of "undue coercion." No less
startlingly, it denied detainees in places like Guantanamo – those "unlawful
combatants" – any right to challenge their detention by filing writs of habeas
corpus in U.S. courts. Complaining
that "Non-Citizen Terrorists" at Guantanamo were filing cases over "the
quality of their food," Graham urged passage of his amendment to spare "our
troops fighting in the War on Terror" from being "sued in every court in the
land by our enemies." For a mess of partisan pottage, the senator was bartering
away this nation's constitutional birthright of habeas corpus, a foundational
legal protection born of Parliament's long struggle to ban royal torture writs
by the infamous Court of Star Chamber.
After the Senate approved Graham's amendment by a 49-42 vote on Nov. 10, reformers
led by Democratic Sen. Carl Levin fought an uphill battle to moderate these
extreme proposals – replacing the bill's blanket acceptance of "coerced" evidence
with ground rules for its evaluation by the courts and trying to limit the ban
on habeas corpus appeals from Guantanamo to future cases, allowing those already
filed to proceed.
But in the final legislation,
titled "The Detainee Treatment Act of 2005," McCain's now-compromised ban
on cruel treatment of detainees was effectively eviscerated by Graham's denial
of legal redress. To nullify the landmark Supreme Court ruling that Guantanamo
is, in fact, American territory and so falls under the purview of U.S. courts,
Graham also stipulated in the final legislation that "the term 'United States,'
when used in a geographic sense, does not include the United States Naval
Station, Guantanamo Bay." In this way, he tried once again to deny detainees
any legal basis for access to the courts. In effect, McCain's motion more
or less bans torture, but Graham's removes any real mechanism for enforcing
such a ban.
The Media Mirage of a Torture Ban
Last Dec. 15, all these tensions seemed to dissolve in a dramatic Oval Office
handshake between Sen. McCain and President
Bush who announced that the landmark legislation made it "clear to the world
that this government does not torture."
That White House photo-op was, however, a complete media mirage. Within hours,
the administration began moving deftly to pull any teeth left in this legislation.
Speaking to CNN, Attorney
General Alberto Gonzales quickly dismissed McCain's reform as insignificant,
insisting that existing legislation only banned the infliction of "severe" physical
or psychological pain in interrogations – the same linguistic legerdemain that
had allowed the administration to start torturing back in 2002. The attorney
general seemed to be echoing the opinions of his subordinates who, according
to the Washington
Post, were already arguing that the McCain amendment would, "under certain
circumstances," still allow "waterboarding" – the same method that the French
Inquisition had once called the "question de l'eau" (water question) or "torturae
Gallicae ordinariae" (standard Gallic torture) – and other harsh techniques.
On Dec. 30, right after signing a defense bill that included the McCain amendment
at his Crawford ranch, President
Bush issued a "signing statement" – carefully released at the extremely
unnewsworthy hour of 8:00 p.m. that Friday night – insisting that his powers
as commander in chief and head of the "unitary executive branch" still allowed
him to do whatever was necessary to defend America. So much for McCain's efforts
as the year ended.
Just four days into 2006, Sen.
McCain, though claiming confidence that the "President understands Congress'
intent" in passing the torture ban, promised "strict oversight to monitor the
administration's implementation of the new law." Faced with nullification by
the presidential signing statement, Sen.
Edward Kennedy warned, during Judge Alito's confirmation hearings, that
President Bush was insisting "whatever the law of the land might be, whatever
Congress might have written, the executive branch has the right to authorize
torture without fear of judicial review."
As if to confirm this pessimistic view, the administration quickly
deployed the new Detainee Treatment Act to quash any judicial oversight of
its actions – particularly the dubious designation of detainees as "unlawful
enemy combatants" unworthy of any protection by the Geneva Conventions or
the U.S. Constitution.
On Jan. 3, the Justice Department, citing this new law, notified federal judges
that it would soon seek the immediate dismissal of all 160 habeas corpus cases
already filed for 300 Guantanamo detainees. On Jan. 12, the solicitor general,
again citing the new law, told the Supreme Court it no longer had jurisdiction
over Guantanamo and asked the justices to dismiss another potential landmark
"unlawful combatant" case, Hamdan v. Rumsfeld. Then, putting the cherry
atop the administration's many-layered legal confection, on Jan. 24 the Army
changed its standing orders to allow military executions at Guantanamo, thus
keeping the U.S. courts from intervening in any drumhead death sentences for
All these maneuvers were part of a White House campaign essentially aimed at
formalizing those three dubious legal doctrines that had long underpinned its
torture policy. Recoiling from the prospect of an "Imperial Presidency" implicit
in these moves, the New York Times of Jan. 15 called on Congress "to
curtail Mr. Bush's expansion of power" and his "unilateral rewriting of more
than 200 years of tradition and law."
Looking through a glass darkly into the future, the possible implications
of these trends for the quality of American justice are troubling indeed.
The military tribunals at Guantanamo are not required to reveal the sources
of their evidence against the 500 detainees on trial, even though significant
parts of it undoubtedly come from torture and abuse of either the accused
or other detainees. Moreover, under the Detainee Treatment Act, federal courts
will be able to consider the use of this same coerced information in hearing
any appeals from Guantanamo. In a sharp, sad contrast with Britain's law lords,
our congressional legislation allows the courts to weigh the probative value
of tortured testimony, potentially introducing coerced evidence into the federal
courts for the first time in our nation's history.
One question seldom asked is: Why has the public response to issues
that cut to the very core of America's national identity been so muted? The
short answer: The administration's increasingly unapologetic advocacy of torture
has echoed subtly but effectively with the trauma of 9/11.
With the horrific reality of the Twin Towers attack still resonating
and endless nuclear-bomb-in-Times-Square/ticking-bomb interrogation scenarios
ricocheting around the media and pop culture, torture seems to have gained
an eerie emotional traction. Polls taken over the last three years have confirmed
this. With a complex reality reduced to a few terrifyingly simple, fantasy-ridden
scenarios, torture in defense of the "homeland" has gained surprisingly wide
acceptance, while the torture debate has been reframed – to the administration's
great advantage – as a choice between public safety and the lives of millions
or private morality and bleeding-heart qualms over a few slaps up the side
of the head. In this way, old-fashioned morality has been made to seem little
short of immoral.
Through the invisible tendrils that tie a state to its society, the media has
often reflected aspects of administration policy on such subjects. Television,
in particular, has had a powerful effect in its repeated portrayals of harsh,
even abusive interrogations as effective and morally justified acts – when,
in fact, they are neither. After years of watching television shows such as
NYPD Blue and 24 with plots that mimic the ticking-bomb scenario,
millions of ordinary Americans seem to believe that we have entered an era when
abuse, or even torture, is necessary to save lives.
Each week, for instance, up to 20 million Americans have watched the fictional
detectives of NYPD Blue use harsh methods to "tune up" suspects in the
"pokey,'" or interrogation room, risking their careers to extract information
that regularly saved lives and made the city safer. Accepting the need to torture
just one criminal in this week's episode, or just one terrorist with a ticking
bomb in Fox Television's popular CIA drama 24, opens ordinary Americans
to consider whether the torture of real terrorists is not only justifiable but
imperative. It seems likely that these televised scenarios have lent a hand
in creating a public climate tolerant of governmental torture.
Does Bush administration policy really reflect a fundamental shift
in moral choices by the American public? Have we really developed a taste
As a people, we are now faced with a decision that will influence
the character of our nation and its reputation in the eyes of the world. We
can agree with the Bush administration's decision to make torture a permanent
weapon in the American arsenal – or we can reject this policy and join the
international community by honoring our commitments under the UN convention,
as well as under U.S. law, and banning torture unconditionally.
Alfred W. McCoy is the author of A
Question of Torture: CIA Interrogation, from the Cold War to the War on Terror
(Metropolitan Books, The
American Empire Project, 2006) and a professor of history at the
University of Wisconsin-Madison.
Copyright 2006 Alfred W. McCoy