The McCain-Bush accommodation on torture may well turn out to be a disappointment to those who thought that, at long last, the government would embrace a simple, clear ban on torture. Instead, the actual agreement is loaded with coded phraseology that gives the government a way around the ban.
The first paragraph of McCain’s amendment regulates the military’s treatment of detainees. It states that detainees “in the custody or under the effective control of the Department of Defense” will have their treatment dictated by the new Army Field Manual. Under existing law, the concept of “effective control” can include entities outside U.S. sovereignty but where, nonetheless, the U.S. calls the shots. For example, there is a case involving a ship flying the Yugoslav flag that, because the ship was a member of an allied merchant marine led by the U.S., was deemed to be under U.S. jurisdiction. Thus, it is conceivable that a U.S. soldier who gave an order to an Iraqi subordinate to mistreat an Iraqi detainee could be held accountable for an act of torture.
But the second paragraph in the amendment, which is intended to apply to the CIA and was much more contentious in the McCain-White House negotiations, is very different. McCain’s anti-torture statute states that detainees “in the custody or under the physical control of the United States Government” will not be subject to inhumane treatment. But physical control is a standard in federal law that is much more lax. It refers to locations where the
United States has complete and total jurisdiction.
If recent events are any indication, the CIA knows the difference between “effective control” and “physical control” all too well. The CIA is known to have set up facilities governed by a “host nation,” like Afghanistan, where it pays the bills and gives the orders. But when detainees die, no U.S. agent is held accountable. The Washington Post reported about this problem on March 3, 2005, at an Afghan facility called the “Salt Pit.” In a November 2002 incident at the Salt Pit, a CIA officer gave an interrogation order to Afghan guards that resulted in a detainee freezing to death.
Ultimately, the Justice Department concluded that it could not prosecute the agent who gave the order because Afghans owned the facility and the CIA officer just happened to be present. The CIA officer who committed this crime has since been promoted.
This is the sort of arrangement in Iraq, Afghanistan, or perhaps even the secret prisons that may have recently been moved from Eastern Europe to North Africa. So by formally legislating the distinction between “effective” and “physical” control, the McCain amendment could turn out to provide a defense for CIA torture.