President Bush Vetoes Bill on CIA Interrogation Methods

By Anthony Dworkin

President Bush has vetoed a bill passed by Congress that would have created a uniform standard for interrogation by American personnel by requiring CIA agents to comply with rules already laid down for the US military.  The provision was contained in an intelligence authorization bill that was passed by the Senate in February, and Bush announced that he would veto the bill during his radio address on Saturday, March 8.  Bush said he was vetoing the bill because “we need to ensure our intelligence officials have all the tools they need to stop the terrorists.”

The bill required (in Section 327 (a)) that, “No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.”  The Army Field Manual was introduced in September 2006 and forbids the use of abusive interrogation techniques including waterboarding, forced nakedness, hooding, use of dogs or the application of any form of physical pain.  Instead, the manual requires that interrogators restrict themselves to a series of 19 techniques such as “Emotional Futility,” “Fear Up,” “Fear Down,” “Mutt and Jeff” (i.e. Good Cop, Bad Cop), and “False Flag” (in which the detainee is made to believe he is held by agents of another country).

In vetoing the bill, President Bush said that it would prevent the CIA from using any of the “alternative procedures” that it had developed to respond to the fact that many terrorists had been trained to withstand conventional interrogation techniques.  “The best source of information about terrorist attacks is the terrorists themselves,” Bush said. “If we were to shut down this program and restrict the CIA to methods in the Field Manual, we could lose vital information from senior al Qaida terrorists, and that could cost American lives.”  The Senate majority leader Harry Reid said in a statement that Bush had “rejected the Army field manual’s recognition that such horrific tactics elicit unreliable information, put U.S. troops at risk and undermine our counterinsurgency efforts.”

The CIA is already subject to a number of restrictions on its use of abusive interrogation techniques, and these will not be affected by the President’s veto.  First of all, torture—defined as the infliction of “severe physical or mental pain or suffering”—is forbidden under US and international law.  In addition, a further restriction was introduced by the so-called “McCain Amendment” passed as the Detainee Treatment Act in 2005.  This required that, “No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”  In addition, since the Supreme Court’s decision in the Hamdan case in 2006, the “war on terror” has been covered by Common Article 3 of the Geneva Conventions which forbids cruel treatment, torture, and “humiliating and degrading treatment.”

The reason why torture and coercive interrogation remain a political issue is that the Bush administration interprets these laws in such a way as to permit all or most of the “alternative techniques” that the CIA has been authorized to use.  First of all, working from an exceptionally restricted interpretation of the definition of torture, the administration has argued that none of the techniques count as torture.  Then, in line with a test developed by the Supreme Court to assess the interpretation of the Fifth Amendment, the administration argues that cruel and inhuman treatment should be understood as acts that “shock the conscience.”  In the case of terrorists, the argument goes, our conscience might tolerate treatment that would shock us in other circumstances.  Hence the fact that the CIA program remain active (although it has not used waterboarding since 2003, according to the Agency), and hence the drive by Democrats in Congress to extend the restrictions of the Army Field Manual to the CIA.  Since the Field Manual contains explicit lists of the techniques that are permitted and forbidden, it cannot be treated with the same kind of elastic methods of interpretation that the administration has applied to the more abstract phrases of other laws.

The administration’s argument, then, is that the CIA is bound only by existing law, while the Field Manual is more restrictive than the law, forbidding for policy reasons some measures that are not actually unlawful.  That is why the CIA director, General Michael Hayden, said in a message to CIA employees that the Manual did not “exhaust the universe of lawful interrogation techniques.”  However a traditional interpretation of the Torture Convention, the federal anti-torture statute and Common Article 3 would almost certainly rule out most of the measures that are explicitly prohibited in the Army Field Manual.

The Field Manual states that, when in doubt about whether to use a particular interrogation technique, service personnel should ask themselves whether they would regard the technique as legitimate if it were used against one of their American colleagues. “If the proposed approach technique were used by the enemy against one of your fellow soldiers, would you believe the soldier had been abused?” the Field Manual asks.  By insisting that the law allows some methods that are forbidden in the interrogation Field Manual, and insisting further that such methods should rightly remain available for use by American agents, the Bush administration sets its endorsement on the degradation of standards of conduct for interrogation around the world.

Related Chapters from Crimes of War: What the Public Should Know 2.0:

Torture

Related Links:

White House Text of Bush's Radio Address

March 8, 2008

US Army Field Manual: Human Intelligence Collector Operations

September 2006

Leave No Marks; Enhanced Interrogation Techniques and the Risk of Criminality

Physicians for Human Rights and Human Rights First

August 2007

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