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The Waterboard Test: Where John McCain, Rudy Giuliani, Barack Obama et al. Stand on Torture

Obama calls it ineffective. Giuliani says he?s against it. But would any of them get rid of the loophole making it legal?as long as we outsource the dirty work?

| Thu Apr. 26, 2007 2:00 AM EDT

As the Democratic presidential candidates were preparing for their first prime time debate, Republican John McCain made it official, announcing his candidacy in the traditional venue of New Hampshire’s Prescott Park, rather than on the David Letterman show. While he continues to lag behind Rudy Giuliani in the polls, McCain’s presence in primary debates would at least seem to promise a place on the agenda for an issue that undermines the image of the United States, both in the eyes of the world and in the nation’s sense of itself: torture.

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As recently as the fall of 2005, McCain, an ex-Navy pilot who endured torture in a North Vietnamese prison, was standing up to a Bush Administration eager to preserve America's “flexibility” in war-on-terror interrogations that had allowed such practices as painful shackling and “long standing,” induced hypothermia, mock executions, threats against families, and the infamous waterboarding, or simulated drowning. The “McCain Torture Amendment,” attached to a defense appropriations bill after numerous rounds of negotiations between McCain and the White House, was lauded as a ban on the kind of torture and abuse that had already taken place in Iraq, Afghanistan, Guantanamo Bay, and secret prisons in Eastern Europe and elsewhere; it was also offered as proof of McCain’s independence and moral fiber. McCain himself went on the “Today” Show to say: “We got what we wanted, and that is the preservation of the Geneva Conventions. There will be no more torture. There will be no more mistreatment of prisoners that would violate standards of conduct we would expect of people who work for the United States of America.”

In fact, as my colleague Michael Roston and I wrote at the time in the Village Voice, the Arizona senator’s so-called torture ban left an enormous loophole: In its final form, the bill legislated a distinction between the rules to which interrogators from the U.S. military would be subjected, and those to be followed by the intelligence community. The CIA, FBI, and other intelligence agencies would, in particular, not face legal consequences if they suborned torture by a foreign military or spy service.

The torture “ban” was further weakened by an amendment introduced by South Carolina Republican Lindsay Graham, which provided certain exemptions for Guantanamo and removed mechanisms for legal enforcement, and by a barely noticed presidential signing statement in which Bush re-asserted his right to interpret the law as he wished, and do what he deemed necessary to defend the United States. Intelligence historian Alfred McCoy has written that the Graham Amendment clears the road for “twisting this congressional ban on inhumane interrogation in ways that could ultimately legalize such acts.”

Some of the fruits of this policy were revealed earlier this month in a report by the Associated Press, detailing how “CIA and FBI agents hunting for al Qaeda militants in the Horn of Africa have been interrogating terrorism suspects from 19 countries held at secret prisons in Ethiopia, which is notorious for torture and abuse.” While denying that Americans had abused any detainees, the FBI's Richard Kolko was quick to insist that, “The prisoners were never in American custody.” A Human Rights Watch researcher described the conditions to which the detainees were subjected as comparable to a "decentralized, outsourced Guantanamo.” As noted in a March 30 report from Human Rights Watch, many of the detainees were fleeing the fighting in Somalia, and Somalia’s Transitional Federal Government, along with Ethiopia, Kenya, and the United States cooperated in the secret detention program. “Each of these governments has played a shameful role in mistreating people fleeing a war zone,” said HRW’s Africa Director. “Kenya has secretly expelled people, the Ethiopians have caused dozens to ‘disappear,’ and US security agents have routinely interrogated people held incommunicado.”

A story in last Sunday’s New York Times provided another, probably common, scenario when it described a scene at one of the new joint American-Iraqi security stations in Baghdad, set up as part of the new “surge” plan where a U.S. Army captain praised Iraqi soldiers after three suspects were captured and provided valuable information. According to the article, “What the Iraqis had not told them was that before handing over the detainees to the Americans, the Iraqi soldiers had beaten one of them in front of the other two, the Iraqis said. The stripes on the detainee’s back, which appeared to be the product of a whipping with electrical cables, were later shown briefly to a photographer, who was not allowed to take a picture.” An Iraqi captain told Times reporter Alissa J. Rubin, “I prepared him for the Americans and let them take his confession.”

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