How Torture Became Mainstream

Just before Christmas last, President Bush and Senator John McCain appeared in the Oval Office to announce an historic ban on torture by any U.S. agency, anywhere in the world. Looking straight into the cameras, the president declared with a steely gaze that this landmark legislation would make it "clear to the world that this government does not torture."

This meeting was the culmination of a tangled legislative battle that had started six months before when Senator John McCain introduced an amendment to the must-pass Defense Appropriation Bill, calling for an absolute ban on "cruel, inhumane and degrading" treatment. The White House fought back hard, sending Vice President Cheney to Capitol Hill for a wrecking effort so sustained, so determined that a Washington Post editorial branded him "The Vice President for Torture." At first, Cheney demanded that the amendment be dropped. The senator refused. Next, Cheney insisted on an exemption for the CIA. The senator stood his ground. Then, in a startling rebuke to the White House, the Senate passed the amendment last October by a 90-9 margin, a victory celebrated by Amnesty International and other rights groups. With the White House still threatening a veto, the appropriation gridlocked in an eyeball-to-eyeball standoff.

Then came that dramatic December 15th handshake between Bush and McCain, a veritable media mirage that concealed furious back-room maneuvering by the White House to undercut the amendment. A coalition of rights groups, including Amnesty International, had resisted the executive's effort to punch loopholes in the torture ban but, in the end, the White House prevailed. With the help of key senate conservatives, the Bush administration succeeded in twisting what began as an unequivocal ban on torture into a legitimization of three controversial legal doctrines that the administration had originally used to justify torture right after 9/11.

In an apparent compromise gesture, McCain himself inserted the first major loophole: a legal defense for accused CIA interrogators that echoes the administration's notorious August 2002 torture memo allowing any agents criminally charged to claim that they "did not know that the practices were unlawful."

Next, the administration effectively neutralized the McCain ban with Senator Lindsey Graham's amendment stipulating that Guantanamo Bay detainees cannot invoke U.S. law to challenge their imprisonment. Complaining that detainees were filing trivial lawsuits over the quality of their food, Graham's amendment thereby attempted to nullify the Supreme Court decision in Rasul v. Bush that had allowed detainees to pursue habeas corpus appeals in U.S. courts. In sum, McCain's original amendment banned torture, but Graham's later amendment , as finally approved by the Senate, removed any means for enforcement. For a mess of bipartisan pottage, Congress thus bartered away this nation's constitutional birthright of habeas corpus, a foundational legal protection born, ironically, of the British Parliament's long struggle to ban royal torture writs by the infamous Court of Star Chamber.

For the final loophole, on December 30 President Bush issued a "signing statement" insisting that his powers as commander-in-chief and head of the "unitary executive branch" still allowed him to do whatever is necessary to defend America--the same key controversial doctrine the administration had first used to allow torture. Instead of marking closure to the Abu Ghraib scandal, the McCain torture ban has thus sparked a renewed campaign by human-rights advocates to end the use of torture in Washington's War on Terror--an effort that may well prove to be a long, uphill battle.

Only days after Bush signed the legislation containing the McCain amendment, the White House used a portion of the new law, now called the Detainee Treatment Act of 2005, to quash any judicial oversight of its actions. On January 3 the Justice Department notified federal judges that it would seek the immediate dismissal of all 160 habeas corpus cases filed by Guantanamo detainees. One week later, the U.S. Solicitor General, citing this law, told the Supreme Court it no longer had jurisdiction over Guantanamo and asked the justices to dismiss the potential landmark "unlawful combatant" case, Hamdan v. Rumsfeld. In late March, when the court began to hear oral arguments in this critical test case of U.S. military tribunals, several justices appeared to reject the solicitor general's argument after vigorously questioning him.