SECRETARY OF State Condoleezza Rice did not break any new ground yesterday when she declared that "as a matter of U.S. policy," an international ban on "cruel, inhuman and degrading treatment" covers U.S. personnel "wherever they are." Defense Department General Counsel William J. Haynes II offered the same assurance in a letter to Congress in June 2003. Noting that the Senate had defined "cruel, inhuman and degrading" as any treatment that would violate the Fifth, Eighth and 14th amendments of the Constitution, Mr. Haynes stated that Bush administration "policy is to treat all detainees and conduct all interrogations, wherever they occur, in a manner consistent with this commitment." During his confirmation hearing earlier this year, Attorney General Alberto R. Gonzales said that while it was not legally obligated, the administration "wants to be" in compliance with that standard. His nominee for deputy, Timothy E. Flanigan, told the Senate several months ago that "it is the policy of the administration to abide by the substantive constitutional standard."
Yet during some or all of the past two years, according to reports by numerous U.S. media outlets, the CIA has been subjecting foreign detainees in secret prisons to interrogation techniques including "waterboarding," or simulated drowning; mock execution; prolonged shackling; being threatened with dogs; and "cold cell," in which prisoners are held naked in low temperatures and doused with cold water. It is not just human rights groups that believe these methods violate the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment; according to a report last month in the New York Times, the CIA's own inspector general concluded in a secret report in 2004 that the methods violated the treaty standard.
What then, are Americans -- and the outraged Europeans Ms. Rice was addressing -- to make of her statements insisting that the United States is following its treaty obligations? Unfortunately, her words do not resolve the questions over the CIA's secret prisons. Despite its repeated statements of "policy," the administration has almost certainly been violating the standards of the Convention Against Torture -- unless it believes that waterboarding is permitted by the Constitution and could be used by the FBI on Americans. Mr. Gonzales argued that some violations would be legal, because prisoners held overseas are not subject to the Constitution and therefore not technically protected by the prohibition against cruel, inhuman and degrading treatment as the Senate defined it. It may be "policy," in other words, but any policy allows for exceptions.
The only way to end waterboarding and other U.S. violations of human rights is to ban cruel, inhuman and degrading treatment for all prisoners by law. That is the content of the amendment by Sen. John McCain (R-Ariz.) amendment to the defense appropriations bill, which the administration has fiercely resisted despite its proclaimed policy. As the White House knows, the amendment has overwhelming support in Congress. Should President Bush accept it, there would be no more need for secret CIA prisons in foreign countries -- or carefully worded statements by members of his Cabinet.