The Bush administration has proposed exempting employees of the Central Intelligence Agency from a legislative measure endorsed earlier this month by 90 members of the Senate that would bar cruel and degrading treatment of any prisoners in U.S. custody.
The proposal, which two sources said Vice President Cheney handed last Thursday to Sen. John McCain (R-Ariz.) in the company of CIA Director Porter J. Goss, states that the measure barring inhumane treatment shall not apply to counterterrorism operations conducted abroad or to operations conducted by "an element of the United States government" other than the Defense Department.
Although most detainees in U.S. custody in the war on terrorism are held by the U.S. military, the CIA is said by former intelligence officials and others to be holding several dozen detainees of particular intelligence interest at locations overseas -- including senior al Qaeda figures Khalid Sheikh Mohammed and Abu Zubaida.
Cheney's proposal is drafted in such a way that the exemption from the rule barring ill treatment could require a presidential finding that "such operations are vital to the protection of the United States or its citizens from terrorist attack." But the precise applicability of this section is not clear, and none of those involved in last week's discussions would discuss it openly yesterday.
McCain, the principal sponsor of the legislation, rejected the proposed exemption at the meeting with Cheney, according to a government source who spoke without authorization and on the condition of anonymity. McCain spokeswoman Eileen McMenamin declined to comment. But the exemption has been assailed by human rights experts critical of the administration's handling of detainees in Iraq and Afghanistan.
"This is the first time they've said explicitly that the intelligence community should be allowed to treat prisoners inhumanely," said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "In the past, they've only said that the law does not forbid inhumane treatment." Now, he said, the administration is saying more concretely that it cannot be forbidden.
The provision in question -- which the Senate on Oct. 5 voted 90 to 9 to attach to its version of the pending defense appropriations bill over the administration's opposition -- essentially proscribes harsh treatment of any detainees in U.S. custody or control anywhere in the world. It was specifically drafted to close what its backers say is a loophole in the administration's policy of generally barring torture, namely its legal contention that these constraints do not apply to treatment of foreigners on foreign soil.
The House version of the appropriations bill contains no similar provision on detainee treatment, and lawmakers are to meet later this week to begin reconciling the conflict.
Cheney's meeting with McCain last week was his third attempt to persuade the lawmaker, a former prisoner of war in Vietnam, to accept a less broad legislative bar against inhumane treatment. Cheney spokeswoman Lea Anne McBride declined to comment, saying, "the vice president does not discuss private conversations that he has with members [of Congress] . . . or information that may be exchanged with members."
She added that the intent of such meetings is usually "to build consensus on legislative issues, still in the policymaking process." CIA spokeswoman Jennifer Millerwise Dyck, a former Cheney aide, said the agency does not comment on the director's meetings.
Other sources said the vice president is also still fighting a second provision of the Senate-passed legislation, which requires that detainees in Defense Department custody anywhere in the world may be subjected only to interrogation techniques approved and listed in the Army's Field Manual.
The manual is undergoing revision, and McCain has contended that this process will give the military sufficient flexibility to respond to terrorist countermeasures. But Cheney's office has argued in talking points being circulated on Capitol Hill that the manual "will be inapplicable in certain instances" because of such countermeasures.
The CIA has been implicated in a number of alleged abuses in Iraq and has been linked to at least a few cases in which detainees have died during interrogations at separate military bases throughout the country. So far, no CIA operatives have been charged in connection with the abuse, although a single CIA contract employee is on trial for involvement in the death of an Afghanistan detainee, and sources have indicated that a grand jury may be looking at other allegations involving the CIA.
A report by the CIA inspector general's office on the agency's role in the handling of detainees is classified. It has been shown to the Justice Department and briefed only to a few lawmakers. Several military investigations have already blamed the CIA for leading a program in Iraq that essentially made detainees disappear within the military's detention system with no record of their captivity -- a practice that human rights groups have said violated international laws of war.
In a particularly infamous case, a detainee at Abu Ghraib prison in Iraq named Manadel Jamadi was photographed after his death, packed in ice, by military police soldiers at the facility. He allegedly died in a shower room during interrogation by CIA officers after being brought there by Navy Seal team members. A high-level CIA operative allegedly helped conceal Jamadi's death after Army officers found his body.
But the extent of the CIA's direct involvement in torture is unclear, partly because the agency has been reluctant to help the Defense Department's many investigations into abuse and has refused to provide Army officers with documents deemed relevant to the probes.
Staff writer Dana Priest contributed to this report.