Outside the Beltway

Army’s New Interrogation Rules May Anger McCain

James Joyner · Wednesday, December 14, 2005 · 4 comments

In response to congressional oversight into techniques for interrogating prisoners, the Army has issued a classified addendum to existing regulations to clarify policy. Some worry that this may anger Senator John McCain.

New Army Rules May Snarl Talks With McCain on Detainee Issue (NYT, Dec. 13)

The Army has approved a new, classified set of interrogation methods that may complicate negotiations over legislation proposed by Senator John McCain to bar cruel and inhumane treatment of detainees in American custody, military officials said Tuesday. The techniques are included in a 10-page classified addendum to a new Army field manual that was forwarded this week to Stephen A. Cambone, the under secretary of defense for intelligence policy, for final approval, they said. The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations.

Some military officials said the new guidelines could give the impression that the Army was pushing the limits on legal interrogation at the very moment when Mr. McCain, Republican of Arizona, is involved in intense three-way negotiations with the House and the Bush administration to prohibit the cruel treatment of prisoners. In a high-level meeting at the Pentagon on Tuesday, some Army and other Pentagon officials raised concerns that Mr. McCain would be furious at what could appear to be a back-door effort to circumvent his intentions. “This is a stick in McCain’s eye,” one official said. “It goes right up to the edge. He’s not going to be comfortable with this.”

Army officials said the manual required interrogators to comply with the Geneva Conventions, which give broad protections to prisoners of war against coercion, threats or harsh treatment of any kind. But they declined to give examples of specific interrogation techniques that the addendum authorizes, or the conditions for their use, saying they wanted to prevent captives from learning how to thwart them.

Not having seen the rules, I have no view on whether they go “too far.” I would note, however, that by definition having precise legislative guidelines means there is a line between legal and illegal conduct. So, if going “right to the edge” is a problem, that line needs to be redrawn.

Further, the Army, like any government agency, will naturally issue regulations for their employees giving them precise guidelines to stay within compliance with the law. While doing so may have the effect of giving them encouragement to go right up to the limits of the law, that is not necessarily the intent. Indeed, from the little information provided by the article, it would seem the opposite is true:

One Army officer expressed exasperation that senior military and civilian officials were failing to articulate a coherent approach toward interrogation, saying much of the confusion centered on disparate definitions of abuse. “Everybody’s talking past each other on this,” the officer said. ” ‘Cruel, inhumane and degrading treatment’ is at the crux of the problem, but we’ve never defined that.”

The new manual, the first revision in 13 years, will specifically prohibit practices like stripping prisoners, keeping them in stressful positions for a long time, imposing dietary restrictions, employing police dogs to intimidate prisoners and using sleep deprivation as a tool to get them to talk, Army officials said. In that regard, it imposes new restrictions on what interrogators are allowed to do. Those practices were not included in the manual in use when most of the abuses occurred at Abu Ghraib in Iraq in the fall of 2003, but neither were they specifically banned.

As is typically the case, the law provides very vague guidelines and the agencies which are charged with carrying it out fill in the details using their experience and expertise. This is true whether we’re talking about food safety regulations or the rules of war. If Congress disagrees with agency interpretation, it has the power to clarify its intent.

Update: Thomas Holsinger explains “The Legal Flaws of the McCain Amendment” at Winds of Change. The short form: “[I]t will give enemy terrorists captured or held by American forces the right to sue the United States government for violating their civil rights, and thereby make it impossible for the United States to keep secret the information it obtains from interrogating them.” For a more extensive analysis and related sources, click the link.