Reckoning with tor­ture

Los Angeles Times - - OPINION -

As Congress de­bates the mam­moth bill known as the Na­tional De­fense Au­tho­riza­tion Act, Sens. Dianne Fe­in­stein (DCalif.) and John McCain (RAriz.) are press­ing their col­leagues to in­clude an amend­ment that would strengthen the prohibition against the kind of tor­ture in­flicted on sus­pected ter­ror­ists dur­ing the Ge­orge W. Bush ad­min­is­tra­tion. Such leg­is­la­tion is long over­due.

Un­der the De­tainee Treat­ment Act of 2005, all U.S. per­son­nel were or­dered in gen­eral terms to re­frain from en­gag­ing in “cruel, in­hu­man, or de­grad­ing treat­ment or pun­ish­ment” of any­one in cus­tody. But only in­ter­roga­tors em­ployed by the Depart­ment of De­fense were re­quired to abide by the Army Field Man­ual, which made spe­cific prac­tices off-lim­its. Ex­empt from the re­quire­ment was the Cen­tral In­tel­li­gence Agency, which took the lead in un­sa­vory in­ter­ro­ga­tions. An at­tempt by Congress to force the CIA to fol­low the man­ual was ve­toed by Bush in 2008.

In 2009, Pres­i­dent Obama is­sued an ex­ec­u­tive or­der re­quir­ing all in­ter­roga­tors to abide by the man­ual. In its cur­rent form, the man­ual in­cludes both gen­eral lan­guage against tor­ture and a spe­cific ban on eight tech­niques: wa­ter­board­ing; forc­ing a de­tainee to be naked, per­form sex­ual acts, or pose in a sex­ual man­ner; plac­ing hoods or sacks over the head of a de­tainee or us­ing duct tape over the eyes; ap­ply­ing beat­ings, elec­tric shock, burns or other forms of phys­i­cal pain; us­ing mil­i­tary work­ing dogs; in­duc­ing hy­pother­mia or heat in­jury; con­duct­ing mock ex­e­cu­tions; and de­priv­ing the de­tainee of nec­es­sary food, wa­ter or med­i­cal care. (The man­ual says that pro­hib­ited ac­tions in­clude, but are not limited to, th­ese specifics.)

It might seem ob­vi­ous that all of th­ese meth­ods amount to “cruel, in­hu­man, or de­grad­ing treat­ment or pun­ish­ment.” But as lawyers in the Bush ad­min­is­tra­tion demon­strated, gen­eral def­i­ni­tions of tor­ture can be cre­atively con­strued to jus­tify hor­rific abuses. It’s vi­tal that pro­hi­bi­tions of tor­ture be both gen­eral and spe­cific.

In ad­di­tion to cod­i­fy­ing Obama’s or­der, the amend­ment pro­posed by Fe­in­stein and McCain would re­quire that the man­ual be pe­ri­od­i­cally re­viewed to en­sure that it re­flects U.S. legal obligations and “ev­i­dence­based best prac­tices” for in­ter­ro­ga­tions that don’t in­volve the use or threat of force. Re­vi­sions would be made public. Fi­nally, it re­quires all agen­cies of gov­ern­ment to pro­vide the In­ter­na­tional Red Cross with ac­cess to de­tainees in their cus­tody.

In the panic that fol­lowed 9/11, the U.S. gov­ern­ment for­sook Amer­i­can val­ues and trav­eled to what for­mer Vice Pres­i­dent Dick Cheney called the “dark side.” It has taken years for this coun­try to reckon with that be­trayal of its ideals. It was only last year, for ex­am­ple, that the public was pro­vided with a sum­mary of a Se­nate In­tel­li­gence Com­mit­tee in­ves­ti­ga­tion of Bush-era detention and in­ter­ro­ga­tion poli­cies.

In her fore­word to that re­port, Fe­in­stein, then the com­mit­tee chair­woman, wrote that Obama’s ex­ec­u­tive or­der should be “en­shrined in leg­is­la­tion.” Now is the time for Congress to take that step.

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