After resisting for months, President Bush caved in to Sen. John McCain (R-Ariz.) on Thursday and said he would accept a formal ban on the cruel or inhumane treatment of detainees in U.S. custody anywhere in the world.
The agreement represented a rare policy reversal for Bush on his signature issue: his leadership in the battle against terrorism. It followed an unusual rebuke of the president from lawmakers in his own Republican Party, who largely fell in line behind McCain, a former Vietnam prisoner of war and torture survivor with unassailable authority on the subject.
The White House had resisted a formal ban, arguing that existing law outlawed torture. Bush administration officials also had expressed concern that a ban would undermine U.S. personnel interrogating terrorism suspects, because detainees would fear them less.
But McCain’s push for the ban on cruel and inhumane treatment drew overwhelming support from senators and representatives of both parties, who expressed concern that the moral authority of the United States in the rest of the world had eroded as a result of abuses at Iraq’s Abu Ghraib prison and reports of misconduct elsewhere.
McCain argued that Bush’s concerns were outweighed by the damage already suffered to the reputation of the U.S. and the increased danger to captured U.S. service members -- who, without a ban in place, would be more likely to face torture at the hands of enemies.
“We’ve sent a message to the world that the United States is not like the terrorists,” McCain said at the conclusion of an Oval Office meeting with Bush in which they sealed the deal. “What we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are.”
Originally, the White House, led by Vice President Dick Cheney, had sought an exception from the law for CIA interrogators and other assurances that interrogators would not face prosecution. McCain insisted that no U.S. personnel should be granted immunity from prosecution under amendments attached to military budget measures that must pass the Senate and the House to ensure smooth funding of operations in Iraq.
After weeks of tough negotiations, the president and his top advisors won two concessions from McCain: that interrogators accused of using improper methods could offer as a defense that they were acting on orders that a reasonable person would believe to be lawful, and that the U.S. government would pay their legal fees.
Those concessions were not enough to win over Rep. Duncan Hunter (R-El Cajon), the chairman of the House Armed Services Committee, who had backed the White House in its effort to get broader protections. Hunter said he would not accept the compromise as part of his committee’s military spending bill without further assurances.
In a news conference, Hunter said he had asked the White House to send a letter to his committee and the House intelligence committee asserting that the McCain amendment would not damage U.S. intelligence operations.
“This is not something you jump into because everyone wants to go home for Christmas,” Hunter said.
Hunter’s resistance raised the possibility that McCain’s proposal would be moved onto another bill to ensure passage by the end of the year.
“The language is agreed. The vehicle by which it is going to get enacted by the Congress is still being worked,” said national security advisor Stephen Hadley, who acted as the chief negotiator for the White House with McCain.
Those negotiations began in October, after McCain’s amendment was adopted 90 to 9 by the Senate. The proposal was endorsed Wednesday in a nonbinding measure in the House by a vote of 308 to 122.
The McCain amendment would prohibit “cruel, inhuman or degrading treatment or punishment” of anyone in U.S. government custody, regardless of where they are held.
That language could place new restrictions on the CIA and the methods it uses in interrogating terrorist suspects held in secret facilities operated by the agency in foreign countries. The agency is believed to have custody of several dozen high-level Al Qaeda prisoners and other terrorist suspects.
Since the Sept. 11 attacks, the CIA has used an array of coercive techniques that go beyond methods traditionally employed by military interrogators. One technique that has reportedly been employed by agency operatives is called “waterboarding,” which involves strapping a prisoner to a board and dousing him with water to create a sensation of drowning.
The method is said to have been used on Khalid Shaikh Mohammed, the alleged planner of the Sept. 11 attacks, who was captured in Pakistan in 2003. McCain’s amendment does not explicitly ban waterboarding, but it and certain other methods are presumed to be deemed unacceptably cruel or inhumane under the amendment.
The White House previously had argued that existing conventions banning such treatment did not necessarily apply in cases involving foreign suspects being questioned by U.S. operatives on foreign soil.
But the McCain bill seeks to close that loophole by saying such restrictions apply “regardless of nationality or physical location.”
The McCain amendment does not, however, eliminate another controversial tool the CIA has used in the war on terrorism -- the practice known as rendition, in which captured suspects are turned over to other countries for questioning. Some of the destination countries, including Egypt, are notorious for their brutal treatment of prisoners.
Still, the potential effect on CIA operations was significant enough that Cheney and CIA Director Porter J. Goss met with McCain in October, expressing concern with the amendment and, according to sources, seeking an exemption for CIA operatives.
Current and former intelligence officials said the McCain measure probably would not require the CIA to alter interrogation methods currently in use, largely because the agency previously had halted the use of waterboarding and other controversial techniques.
After Sept. 11, the agency sought guidance from the Justice Department on how far it could go in interrogating prisoners. A subsequent department memo advised that harsh treatment would have to be equivalent to “organ failure” before it could be considered torture.
But the department backed away from that aggressive posture in the aftermath of the Abu Ghraib prison scandal, prompting dismayed CIA officials to become more cautious.
“As the Justice Department and others started moon-walking away from their past decisions, people at the agency didn’t want to be left holding the bag,” said a former senior CIA officer.
CIA spokeswoman Jennifer Millerwise Dyck declined to comment on CIA interrogation methods except to say that “the CIA understands its legal obligations and of course complies with U.S. policy.”
Some former agency officials were critical of the White House for backing down.
“I think it’s very foolish to disarm yourself when you don’t know what the future is going to bring,” said Michael Scheuer, a former counterterrorism official at the CIA.
Scheuer stressed that he didn’t advocate torture, but he believed the new rules could lead the CIA to abandon effective and legal methods out of fear of possible political fallout.
“What happens now if you have, on short notice, reason to think somebody has information about an imminent serious attack inside the United States?” Scheuer asked.
But other former CIA officials said McCain’s amendment would erase the ambiguity that often leads to indecision in the field.
“Intelligence officers want clarity,” said a former CIA case officer with extensive experience in the Middle East. “They want to know what the rules are, and they’re going to follow them.”
The McCain amendment would also require that detainees in military custody be treated in accordance with the Army Field Manual on interrogation.
Army officials have spent much of the last year overhauling the manual, adding language that explicitly forbids the use of dogs to menace detainees or stripping prisoners of their clothing. It also imposes tighter restrictions on sleep deprivation and stress position techniques, in which prisoners are placed in uncomfortable positions in an attempt to weaken their resolve. The previous field manual did not address such practices.
This section of the McCain amendment, however, would not apply to prisoners in the custody of the CIA.
In the Oval Office meeting Thursday, there was little sign of tension between McCain and Bush, who were rivals for the 2000 GOP presidential nomination and have repeatedly clashed over McCain’s willingness to chart his own policy course.
“Sen. McCain has been a leader to make sure that the United States of America upholds the values of America as we fight and win this war on terror,” Bush said. “We’ve been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture, whether it be here at home or abroad.”