Congress approves new law against torture, weakens many safeguards
by Jennifer Harbury

The U.S. Congress has at last taken a position on the treatment, interrogation methods, and indefinite detention of detainees in U.S. custody. Not surprisingly, the results are mixed, and what the government has given with one hand, it has de facto taken away with the other. We must nevertheless be happy for the concrete gains made, and send many thanks to all who participated in our long advocacy campaign, as well as to Dana Priest, whose Washington Post story about secret U.S. prisons in Eastern Europe had enormous impact during the last few weeks.

Anti-torture campaign a success
The good news is that Arizona Sen. John McCain’s effort to prohibit cruel and degrading treatment of the detainees was an enormous success. After years of silence, Republicans and Democrats in both houses finally gave a resounding “No!” to U.S. torture practices. In doing so, they stood together in open defiance of Vice President Dick Cheney, who had been pressing for special exceptions. President Bush was forced to retract his threat of a veto, and “accept” the bill.

It is important to remember, however, that torture has in fact been a felony since 1996, when 18 USC 2340 was passed. Almost all of the techniques used by the United States to date, such as water-boarding, fall clearly within the definitions of the interrogation statute, which were drawn directly from the United Nations Convention Against Torture. Cruel, degrading, and inhumane treatment is a separate legal category, and was meant to prevent dragging prisoners through spitting, screaming crowds, or forcing them to grovel on film. Forcing a devout Muslim to wear women’s underpants on his head might fall within the category.

Importance of McCain’s bill
Why, then, was McCain’s bill of importance? Because many administration leaders, from CIA Director Porter Goss to Attorney General Alberto Gonzales, have claimed that the current torture practices are not really torture, but "merely" cruel and degrading. This was unlikely to hold up in a court of law, but now that loophole is closed in any event.

Second, the United States had signed the Convention Against Torture with the reservation that it not apply more strictly than our own Constitution. In fact, our Constitution would prohibit every single one of the current interrogation "techniques." But our Constitution has been ruled to not apply outside the United States.

Downside: Protection for torturers
What, then, is the downside? To begin with, part of McCain’s bill was based on the acceptable methods set forth in the Army Field Manual. That manual was, predictably, changed. Worse yet, the final compromise sets out an affirmative defense for the torturers. If the methods were officially authorized or determined to be lawful at the time of the torture, then the torturer will not be found guilty. The defendant can show he or she was relying on the advice of counsel.

What is going on here? They are trying to be sure that no CIA agent or other person can be held guilty so long as people like Gonzales said that water-boarding and other tactics were legal, or if Goss or former CIA Director George Tenet authorized them. In short, they are trying to be sure that no one will stand trial for what has already been done. That, in turn, assures that it will happen again. Ten years ago the Senate Intelligence Committee assured me that torture would never happen again, that my husband Everardo had been tortured and killed by “rogue operators.” The Intelligence Oversight Board issued searing findings. No one went to trial though, and here we are again.

No habeas corpus rights
As for the indefinite detention question, the bill raises serious problems as well. After the final decision is reached by the military tribunal regarding enemy combatant status of the detainees, a limited appeal to the Circuit Court of Appeals for the District of Columbia on that issue is possible. The court may also give limited review to any case in which a detainee was sentenced to death or 10 years or more of imprisonment.

However, the detainees have been stripped not only of habeas corpus rights, but also of their right to sue for torture or anything else. Worse yet, the tribunal can decide to use statements obtained through torture. This can happen despite the fact that our own intelligence experts have told us repeatedly that torture does not yield good intelligence.

In short, a prisoner can be tortured in Guantanamo until he or she "confesses," then found to be an enemy combatant on that basis. The detainee can then be held indefinitely and further abused without any legal redress at all with regard to physical or mental abuse. Moreover, there is no review at all for the detainee until he or she has had a hearing and been held an enemy combatant. That can be a very long time.

More advocacy, legal work ahead
Thanks to our system of checks and balances, Congress does not have the last word. There will be years of litigation over these questions, and hopefully some of the problems will eventually be worked out. Meanwhile we have a lot of work to do yet. We have won some and lost some. Let’s enter the new year of 2006 with high spirits and an ever stronger commitment to human rights.

Read about White House pressure to weaken anti-torture legislation.