Impact of the Anti-Torture Amendment

Renee Montagne talks to Scott Silliman, executive director of the Center on Law, Ethics and National Security, at Duke University, to learn more about how the McCain amendment will affect U.S. policy on interrogation.

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RENEE MONTAGNE, host:

To learn more about how the McCain amendment will affect what goes on in interrogations, we turn to Scott Silliman. He's executive director of the Center on Law, Ethics and National Security at Duke University.

And good morning.

Mr. SCOTT SILLIMAN (Center on Law, Ethics and National Security): Good morning, Renee.

MONTAGNE: Help us out here. What is the difference between torture and cruel, inhuman and degrading treatment?

Mr. SILLIMAN: Renee, torture has always been prohibited both under international law and under our congressional law as well. What Senator McCain has done is to put into law, or presumably it will become part of our law, a prohibition against the use of cruel, inhuman or degrading treatment, acts that do not reach the level of torture outside the United States. That has not been in our law before. Senator McCain fills that gap with this amendment.

MONTAGNE: Could you give us an example? Cruel, inhuman and degrading treatment; what would that be? A stress position that goes beyond a couple of hours?

Mr. SILLIMAN: Exactly, Renee. What we're talking about would be use of excessive physical force such as beatings or food, drink or sleep deprivation for extended periods of time where it starts to affect physical health or something I think the listeners have probably heard about, waterboarding, I think, would clearly be prohibited under McCain's amendment.

MONTAGNE: So it wouldn't have been called torture, but it's outside the pale now?

Mr. SILLIMAN: That's exactly correct. Again, torture has always been banned, torture being the intentional imposition of very severe physical or mental harm. Cruel, inhuman and degrading treatment has not been defined either in international law, and it will have to be defined actually by the Department of Justice because the only thing we have now in Senator McCain's bill is it includes those acts which violate the Fifth, Eighth and 14th Amendment.

MONTAGNE: Right. So an interrogator in the field, will that person know clearly what's permitted and what's not? Are there actually going to be words on the page?

Mr. SILLIMAN: The words will have to come later, Renee. Again, the Department of Justice and folks at CIA will have to look to the case law and find out exactly what would be prohibited under those three constitutional amendments and then go through each procedure to decide whether it would be lawful or not under this McCain amendment.

MONTAGNE: The rights of interrogators seem to have been an important element of the compromise. Is the carrying out of orders a legitimate defense?

Mr. SILLIMAN: It has always been a legitimate defense for those in the military. It's a part of the Uniform Military Code, and it basically says that you cannot be convicted of a crime if you are following lawful orders unless you either knew those orders to be unlawful or if a person of ordinary sense or understanding would have known those orders to be unlawful. That's the test that now applies outside the military to the CIA and other government officials.

MONTAGNE: So does this leave open the possibility that orders to torture or use of cruel, inhuman and degrading treatment could still be given by higher-ups?

Mr. SILLIMAN: Well, in theory yes, Renee. The president of the United States obviously could authorize something, which, as commander in chief, he would say, nonetheless is contrary to law, if it's absolutely necessary, but we would have to put the accountability at the very highest level because Congress is saying this is an act that the United States will not do. Only the president, in my judgment, would be the one who could authorize something against that law.

MONTAGNE: Thank you very much.

Mr. SILLIMAN: My pleasure, Renee.

MONTAGNE: Scott Silliman is a professor of law at Duke University. An extensive history of torture and the laws of war can be found at npr.org.

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