Army’s New Interrogation Rules May Anger McCain

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.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. DL says:

    McCain is not God! I wish we would stop treating him as such.

    Perhaps those regs are deliberately vague.

  2. Anderson says:

    Thomas Holsinger is a very stupid or very dishonest person. Has he never heard of courts’ keeping information under seal?

    I am so very tired of so-called Americans who would prefer to live under some authoritarian regime without our court system. If they have such a problem with America, the borders are open for Mr. Holsinger and his ilk.

  3. James Joyner says:

    Anderson: I don’t fully understand the law in this area but my understanding is that, even if the information is “under seal” it has to be revealed to the judge who then determines whether it’s relevant to the case. If it is, then the evidence can be used with restrictions–in camera and so forth. Given that sources and methods are often compromised in so doing, intelligence agencies will usually prefer to lose the case than release the information.

    I’m not sure how to handle this and think the rights of the individual need to be given highest priority in these cases. But it is further evidence that law enforcement, intelligence, and warfighting operate on different planes and by different rules.

  4. Go Army!

    In the midst of all the artificial “look at me” hubbub created by John McCain on the issue of torture, The Army has taken it upon itself to issue a new classified addendum to its field manual on the subject…detailing…

  5. […] Commenter Thomas Holsinger’s guest post on Winds of Change on the legal problems that may be caused by the McCain Amendment is definitely worth reading. More on the subject from James Joyner of Outside the Beltway. […]

  6. Anderson says:

    Hm, I was mad when I wrote that comment … of course the judge has to see the info, but why are federal judges now untrustworthy?

    Besides which, looking at Holsinger, he makes no sense that I can discern. I, Abdul al-Anderson, allege that I have been tortured. Having found a naive but sincere lawyer (in the 9th Circuit), I file a sec. 1983 suit, alleging that I was tortured, etc.

    How does “the info learned from interrogating” me have anything to do with my claims?

  7. Stealing McCain’s Thunder

    James Joyner, at Outside The Beltway has posted on the new, classified policies for interrogation being set up by the U.S. Army, which the New York Times speculates will anger U.S. Senator John McCain(R, Arizona) as he is presently negotiating…