The McCain Amendment: Shifting US Policy on Torture
The McCain Amendment: Shifting US Policy on Torture

JURIST Guest Columnist Michael Scharf, Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law, says White House support of the McCain Amendment signals to the world that the US will no longer condone the use of torture in the "global war on terror", but it is only a first step toward full prohibition…

After 9/11, many Americans across the political spectrum began to feel that it would be appropriate for the United States to use "unconventional methods" in fighting the war on terrorism. But in the context of multiple revelations – about the mistreatment of detainees at US detention centers in Guantanamo Bay, Iraq, and Afghanistan; about the practice of “irregular rendition” as a means of outsourcing torture; about the existence of US-created “black sites” where “ghost detainees” are interrogated abroad; and about the content of the leaked “White House torture memos” — torture and the war on terror have together become one of the most controversial legal issues of our time.

In recent months, more and more Americans have begun to ask themselves: How do we combat terrorist threats to our society without destroying the core values of our society? How do we ensure the survival of our country and at the same time make sure that we can live with what survives? And in time of war, must the law be silent?

In October 2005 a group of some of the world’s leading international law experts met at Case Western Reserve University School of Law to debate these issues (the Conference proceedings are available as recorded video). The experts produced “The Cleveland Principles of International Law on the Detention and Treatment of Persons in Connection with The Global War on Terror,” a document endorsed by over 170 current and former high-ranking government, military, and international organization officials, prominent academics, and leading practitioners in the field representing all ends of the political spectrum. The Cleveland Principles were intended as a clear restatement, written in plain English, of the fundamental international legal rules that apply to the treatment of persons in connection with the so-called “Global War on Terror.” The goal was to produce a text that would be easy for the American public, members of the military, and members of Congress to understand — a text that would unambiguously spell out that in the context of the Global War on Terror, there is no law-free zone; torture can never be justified under any circumstances; outsourcing torture to foreign governments or private contractors is unlawful; and that government personnel may be criminally liable for involvement in acts of torture. The full text of the Cleveland Principles and the list of endorsements is available online.

Copies of the Cleveland Principles were sent to each of the 535 members of Congress. Last week, President Bush, under intense bipartisan pressure from both Houses of Congress, announced that he would sign the McCain Anti-Torture Amendment into law. The McCain Amendment makes it unlawful for US. personnel to subject anyone in US custody to torture, cruel, inhuman or degrading treatment, whether in the United States or Abroad.

The McCain legislation establishes that the prohibition on torture is not just a matter of policy, but is now enshrined in federal law, enforceable in US courts and binding even on the President and his top advisors. Those that violate the prohibition therefore face possible prosecution and civil suits. In this way, the McCain Amendment will have an effect similar to the Bolan Amendment of which NSC officials Oliver North and John Poindexter ran afoul in the 1980s, leading to the Iran Contra prosecutions.

The White House had sought an exemption for the CIA, but backed down and accepted a text that covers all US personnel, including both military and intelligence.

By establishing the Army Field Manual as the uniform standard for interrogation of detainees, the McCain amendment bans not just the worst forms of torture, but also tactics that have been labeled “torture light” such as lengthy sleep deprivation, the use of painful stress positions, removal of clothing, exposure to extremely uncomfortable cell temperatures, and the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent.

In a compromise with the White House, the McCain legislation extends to intelligence officers a protection now afforded to military personnel, who if accused of violating interrogation rules can defend themselves if a reasonable person could have concluded they were following a lawful order. But because the legislation provides clarification of the limits of what is and is not acceptable in interrogating terrorists, it will be much harder for interrogators to take advantage of this potential defense.

Moreover, the recognition of this limited obedience to orders defense triggers application of the doctrine of superior responsibility, under which a superior in the chain of command is liable for either ordering an unlawful action, or for failing to prevent or punish such action undertaken by his subordinates.

The McCain legislation sends an important signal to the world that the United States will no longer condone the use of torture in its “Global War on Terror.” But the legislation is just a first step. Since it applies only to persons “in US custody,” it does not apply to the highly controversial practices of irregular rendition and outsourcing torture to foreign governments and private parties acting on behalf of our government. This will be the next legal battleground.

Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law

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