Human Rights First Applauds Agreement Banning Abuse of Detainees

Senator John McCain and the White House announced today that they have reached an agreement on Senator McCain’s amendment banning abuse of detainees. The agreement applies a single standard to all military personnel that abuse of detainees is prohibited.

“This is a victory for America’s values. All U.S. personnel – the military, the CIA, everyone -- will now be on notice that torture and abuse are illegal, and those who engage in it will be subject to prosecution,” said Elisa Massimino, Washington Director of Human Rights First. “Secretary Rice toured Europe last week claiming this is U.S. policy -- and now it will be a clear U.S. law. Practices like waterboarding, stress positions, sleep deprivation and hypothermia are off the table.

In addition to creating an absolute ban on abuse by any U.S. personnel, under today’s agreement, those charged with abusing detainees will have available to them a standard military “reasonable person” defense if they “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.” This defense would be available to only those who were “engaging in operational practices that involve detention and interrogation” of terrorist suspects designated by the President.

“Provisions added by the White House explicitly recognize the possibility of criminal and civil actions against U.S. personnel who violate the absolute ban on abuse. We welcome this,” said Massimino. “The negotiated language merely offers defendants the chance to say their actions were officially authorized. No such defense would be available, however, to senior officials who authorize unlawful methods,” added Massimino.

Today’s announcement is the culmination of a months-long negotiation between the Senator and the White House. Originally, the White House argued that the ban on cruel, inhuman or degrading treatment should not apply to the CIA or to interrogation of non-citizens held outside of the United States. The President had threatened to veto any bill to which the McCain amendment was attached. The Vice President had lobbied vigorously for a CIA exemption to the standard, and for immunity for those who violate it. The agreement announced today includes none of these provisions.

Human Rights First Deeply Troubled by Graham/Levin/Kyl Amendment

Human Rights First reiterated its vigorous opposition to an additional proposed amendment by Senators Graham, Levin and Kyl that would limit the courts’ independent role in checking the legality of executive detention. More recent versions of the amendment would also purportedly allow review boards to consider evidence obtained through coercion.

“No civilized court in the world today considers evidence that was gleaned as a result of torture or cruel and inhuman treatment,” said Elisa Massimino. “Our Supreme Court has made this clear in case after case dating back to the origins of the Constitution,” Massimino added, “and it would be a grave mistake for Congress to backtrack from this age-old principle now.”
The Graham/Levin/Kyl amendment as written raises a series of constitutional questions of this magnitude, making it likely the bill will end up clogging the courts with more work. “Congress would do better to begin by fixing the parts of our system that are broken than by breaking one of the few parts of democracy – our great system of independent courts – that has actually worked well,” Massimino noted.

“When Congress speaks on the question of torture and abuse, it needs to speak with crystal clarity that torture is not tolerated anywhere, anytime, by anyone acting in the name of the United States,” said Massimino. “McCain’s amendment does that. Graham’s does not.”

Human Rights Letter on Graham Amendment

Letter from Adm. John Hutson (Ret., USN) to Senator Specter on Graham Amendment

Background on Graham Amendment