The Debate Over Torture

Here, in retrospect, is where the real trouble began. In the summer of 2003, Rumsfeld sent a get-tough commander from Guantanamo--Lt. Gen. Geoffrey Miller--to "Gitmoize" the interrogation techniques in Iraq. So began an era of "strategic interrogation." Ordinary military policemen were told by intelligence officials to do things like "loosen this guy up for us" and "make sure this guy has a bad night" and "give him the treatment," according to Sgt. Javal Davis, one of the defendants in the Abu Ghraib scandal. Techniques used to ratchet up the pressure on High Value Targets by professional interrogators were being bastardized by poorly supervised, untrained Army MPs like the unfortunate Pvt. Lynndie England, the cavorting guard at Abu Ghraib. The Internet slide shows are still playing across the Muslim world.

There were honorable soldiers in Iraq and Afghanistan who wanted to do the right thing--but couldn't figure out what it was. Even though the administration said the Iraq war was covered by the Geneva Conventions, it never stated clearly how the insurgents should be treated. Capt. Ian Fishback, a West Point graduate deployed with a rifle company in Iraq, has written a heartbreaking chronology of his fruitless efforts to get any kind of clear answer from his superiors or the Pentagon about whether Geneva rules applied to Iraq. The "command climate" cast the insurgency as part of the larger war on terror, suggesting they did not apply, he says. He kept running into men in civilian clothes who, he assumed, were "OGA"--Other Government Agency, the standard military euphemism for the CIA. Hearing "loud noises" coming from the cells where the OGA men were detaining prisoners, Fishback worried about abuse, but assumed such treatment was official policy. "If I had thought that the United States was adhering to the Geneva Conventions I would have immediately investigated," he said, "but I did not." A Pentagon spokesman said Fishback's allegations are being "taken very seriously."

It was Fishback's story that got McCain's attention. On McCain's travels around the world, he heard constant complaints about Abu Ghraib and prisoner abuse. He resolved to do something because "America's position in the world is at an all-time low," he says. McCain's bill outlawing "cruel, inhuman and degrading" treatment of any and all foreign prisoners held overseas would still give interrogators some leeway. The military would be bound by the Army Field Manual, which allows techniques such as "fear up harsh," including "a loud and threatening voice" and "throw[ing] objects across the room to heighten the source's implanted feelings of fear." "Cruel, inhuman and degrading" treatment in prison cases in the United States has been defined by courts as conduct that "shocks the conscience." Such a standard would presumably allow for a sliding scale. For a very small percentage--those High Value Targets like Khalid Shaikh Mohammed--some pretty rough treatment might not "shock the conscience" if the payoff was averting a terrorist strike on an American city. But the sort of abuse that went on at Abu Ghraib--humiliating innocent detainees--would be way out of bounds.

McCain is inspired by the examples of other countries that have wrestled with the torture issue. The Israeli High Court formally outlawed torture in 1999 after at least 10 Palestinians died in custody. Still, in "ticking time bomb" cases when time is of the essence, Israeli interrogators can seek special permission to use force with a suspect--though they would be subject to prosecution if the suspect was not concealing urgent information.

Even McCain recognizes there could be rare instances when a president disobeys the law and orders a suspect tortured--say, if Al Qaeda had hidden a nuclear bomb in New York and a suspect involved in the plot had been captured. "You do what you have to do," McCain told NEWSWEEK. "But you take responsibility for it. Abraham Lincoln suspended habeas corpus in the Civil War, and FDR violated the Neutrality Acts before World War II."

Taking responsibility would be a new concept for the Bush administration. No high-ranking officer has been prosecuted in connection with the abuses, and no Pentagon official has even been publicly reprimanded. There are a number of senior officials openly pushing for some clear legal standard on detainee interrogations. Lately, Secretary of State Condoleezza Rice has been warning Bush that America's low image in the world requires positive steps to take a stand against prisoner abuse. She is backed by national-security adviser Stephen Hadley and Deputy Secretary of Defense Gordon England. But Rumsfeld's position is unclear (often the case with the blunt but slippery Defense secretary), and Cheney remains adamantly opposed to any check on executive power. His new chief of staff (replacing the recently indicted I. Lewis Libby), the hawkish David Addington, has strongly attacked a draft directive from DoD's England that would require detainees to be treated in accordance with language drawn from Article Three of the Geneva Conventions, which prohibit torture and cruel--"humiliating and degrading"--treatment. "Addington is not happy about the draft," says a Pentagon official who requested anonymity because the discussions are still confidential. He added sarcastically that Addington "would like us to be able to pull fingernails with pliers." Lea Anne McBride, a spokeswoman for the vice president's office, said she had no comment on the debate except "the administration does not authorize or condone torture or cruel, humiliating and degrading treatment."