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Central Torture Agency?
Exempting the CIA From the McCain Amendment Sends the Wrong Signal to Our Officers

By Jeffrey H. Smith
Wednesday, November 9, 2005

Americans do not join the CIA to commit torture. Yet that could be the result if a proposal advanced by Vice President Cheney becomes law.

When the abuses by U.S. servicemen and intelligence officers at Abu Ghraib surfaced last year, there was understandable outrage in this country and abroad. Internal investigations and congressional hearings revealed several causes of the abuse. One of the most important was confusion in the military and intelligence agencies as to what rules governed interrogations. A root cause of the confusion was the belief at the highest levels of the administration that the Geneva Conventions, which had governed our conduct for 60 years, were outmoded and should not constrain our treatment of prisoners. Regrettably, the career lawyers in the armed forces and the State Department who have guided our compliance with the Geneva Conventions for decades were cut out of these discussions.

In response, Sen. John McCain, himself a victim of brutal torture by the North Vietnamese, introduced an amendment to the 2006 Defense Appropriations Act that would, in essence, require all agencies of the U.S. government to comply with the Geneva Conventions and international law, which prohibit torture. Over strong administration objection, McCain's amendment passed 90 to 9. It will soon be considered by a conference committee with the House, which has no similar provision in its version of the bill. Enter the vice president.

Cheney and Porter Goss, director of the CIA, have proposed a modification of the McCain amendment that would permit the president to exempt the CIA from its strictures. McCain wisely rejected that proposal. So should the conferees.

If the administration's proposal passed, what would be the consequences? Why should we adhere to the Geneva Conventions when our terrorist enemies do not?

The answers are simple. First, we have long championed the Geneva Conventions because we want our citizens treated humanely when they are captured. Second, morally it is the right thing to do. If this amendment passes, what weight will our complaints have when other governments use their intelligence services to torture Americans?

There are also practical considerations that argue against the administration's proposal. It would sow even further confusion in the field, where decisions must be made by young officers who act under enormous stress and often in fear for their lives. Those officers demand, and we must provide, clear guidance with respect to what they may and may not do. The CIA and the military operate cheek-by-jowl, often in small teams far from command structures and lawyers. If those teams operate with two sets of rules, confusion will reign and abuses will occur.

On Monday the president weighed in, saying that "we do not torture." Regrettably, because his administration has endorsed interrogation techniques that border on torture (anything short of "organ failure"), we cannot be certain of what the president means by torture. That confusion could be eliminated by clear congressional action requiring adherence to a single standard for the whole government, as McCain suggested.

Lawyers and policymakers in Washington who sleep between clean sheets and get three hot meals a day can draft complex rules that make fine distinctions between military and CIA rules for interrogation. Those same officials ask our young officers in the field to take great risks. Risks are necessary to protect us. And war is not bingo. But the officers in the field are mindful that their colleagues are being investigated and may be prosecuted for prisoner abuses. If the Cheney proposal is adopted, what signal will it send to those officers? If the Geneva Conventions don't apply, what are the limits on interrogation? Will officers in the field have confidence that they will be backed up by senior officers in Washington, or will they be prosecuted?

There may be an argument for exempting the CIA from the McCain amendment. If so, the president and vice president should publicly make the case. They should say why they believe treatment of prisoners outside the Geneva Conventions would provide vital intelligence to protect us. They should give examples of how such treatment has produced valuable intelligence. If the choice is between the McCain amendment as modified by Cheney and nothing, we are better off with doing nothing and leaving the law where it is. Sooner or later this nation will come to its senses and remember how important international law and the Geneva Conventions are to our standing in the world and the protection of our citizens.

The Post reported on Oct. 27 that John Negroponte, director of national intelligence, has directed intelligence agencies to "bolster the growth of democracy" and support the rule of law in other nations. Those are noble causes that will be embraced by all intelligence officers. But if the vice president's proposal is adopted, the CIA will presumably be free to bolster democracy by torturing anyone who does not embrace it with sufficient enthusiasm. Some democracy.

The writer is a former general counsel of the CIA.

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