NEAL CONAN, host:
This is TALK OF THE NATION. I'm Neal Conan in Washington.
Within the past hour, the White House and Senator John McCain announced agreement on Senator McCain's amendment that would ban cruel, inhuman and degrading treatment of detainees in US custody in this country and overseas. Here's Senator McCain speaking outside the White House just a few minutes ago.
Senator JOHN McCAIN (Republican, Arizona): We just had a very good meeting with the president and we're in agreement on the language for the Defense Authorization Bill. I want to thank Senator Warner for all his hard work as well as Steve Hadley. We feel that the provisions in this bill will make sure that we send a message to the world that we will not engage in torture or cruel or inhuman treatment. This is a done deal. A majority of the House spoke last night; a majority of the Senate has already spoken. I hope that we can get this resolved within the next 24 hours so the House and Senate can vote on the conference report of the authorization bill and move forward.
CONAN: Senator John McCain, Republican of Arizona, speaking in the White House driveway. As you could hear, a driving rain is under way here in Washington, DC. He appeared with Senator John Warner of Virginia, the chairman of the Senate Armed Services Committee. He mentioned Stephen Hadley; he, of course, the national security adviser, the person who was negotiating with Senator McCain on the torture amendment, as it became known. And a deal has been reached. If you have questions about what's in it, how things will change as a result of this agreement, give us a call. Our number is (800) 989-8255, (800) 989-TALK. Our e-mail address is firstname.lastname@example.org
But let's put those questions first to Michael Hirsh, senior editor at Newsweek magazine, who's been following these issues. He joins us by phone from his office here in Washington.
Michael, nice to have you back on the program.
Mr. MICHAEL HIRSH (Newsweek): Thanks for having me, Neal.
CONAN: So how will this agreement change US policy?
Mr. HIRSH: Well, it becomes law. For the first time, there is real clarity about what kind of interrogation techniques can be used and what prohibitions there are on, you know, potentially abusive techniques. I mean, basically this law says that, you know, the American interrogators can't do anything more abusive to prisoners than they do here at home.
CONAN: And they can't do anything more than is authorized under the Army field manuals for military interrogation.
Mr. HIRSH: Right. Right. But basically what it says is anything that would be considered to violate constitutional restrictions on interrogations here, which is the Fifth, Eighth and 14th Amendments, which protect due process, which protect the right, you know, not to be subjected to cruel and unusual punishment, that those would apply to overseas US facilities as well.
CONAN: Earlier, as you know, Vice President Dick Cheney was particularly involved in trying to negotiate an exemption, saying those rules are fine for military interrogations, but there had to be an exemption for the CIA.
Mr. HIRSH: Right. And McCain stood firm on that to the point where Cheney was taken out of the negotiations, which is interesting because Cheney is a guy who in the past has been used by Bush to negotiate with Capitol Hill. He knows Congress; he was in Congress. Here there was just no meeting of the minds. McCain, you know, was a wall on this one. And so Bush talked to McCain and put Steve Hadley, his national security adviser, in charge. What they ended up with was, you know, about 95 percent or better of what McCain wanted. They did ultimately agree not to any kind of an exception, but they agreed to a provision whereby non-military people, which would really be the CIA or contractors, would have the same opportunity to invoke a superior orders defense, the kind that soldiers can under the Uniform Code of Military Justice where they have the right to counsel and they can, you know, try to argue that the orders from a superior officer were what led them to do whatever they might have done.
CONAN: So, in other words, if they thought they were obeying a legal order when they did whatever it was they did.
Mr. HIRSH: Exactly.
Mr. HIRSH: But, you know, as McCain himself, I think, indicated, because he harked back to Nuremberg, that has always been a very problematic defense. So it's not a very strong protection for interrogators. You know, as you know, the issue at the Nuremberg trials was whether following an illegal order is any defense at all. And of course when it came to Nazis, it was determined that it wasn't.
CONAN: Let me ask you a bit about the politics. Senator McCain always had a strong hand in the US Senate. His amendment was approved by a vote, I think, 90-to-9 in the US Senate. The House of Representatives was much slower and resistant to come over. Then suddenly last night--it's not a binding vote, but overwhelmingly the House voted in favor of the McCain amendment.
Mr. HIRSH: Well, that's right. I mean, it gathered a huge amount of momentum, you know, not least because people on Capitol Hill were aware that many in the administration in the uniformed military, in the State Department and elsewhere also supported some kind of legislation. I mean, everyone knew that America's image was getting hit badly over this.
But it's not over yet, as McCain indicated in its comments today. He said at one point it's a done deal, but he said at another point we want to resolve this in the next 24 hours. And I think what he was referring to there was the fact that Duncan Hunter, the Republican chairman of House Armed Services Committee, is resisting this deal. You know, he doesn't like it and may still try to muster some opposition. But it was a 308-to-122 vote in the House yesterday for this legislation. So it looks like it's going to go through and of course it's not going to be vetoed now.
CONAN: Yes, the White House had said earlier any legislation that included the McCain amendment would be vetoed. Of course this is the defense appropriations bill, a gigantic bill that includes a lot beyond defense appropriations. But that's a lot of money to begin with.
Mr. HIRSH: Right, exactly. So yeah, this looks like, as McCain said, a done deal. I will just add that, you know, there is another aspect of this that is not getting much attention today, and that's what's happening on the other side on the Lindsey Graham effort to clarify detention procedures at Guantanamo and in Iraq and Afghanistan. And there, I think, the administration is winning a little bit more of its position, because this has not yet been finally negotiated, but I believe that Lindsey Graham, the Republican senator who's the main author of this, along with Carl Levin, the Democratic senator, are going to agree to language that will allow for evidence obtained through coercive interrogations in other countries to be used. And that's extremely controversial and has made a lot of human rights people unhappy.
CONAN: A similar ruling against that was just issued in London just the other day by the law lords.
Mr. HIRSH: Exactly.
CONAN: Let us turn now to Larry Johnson, a former CIA analyst and deputy director at the State Department for counterterrorism. He's with us now by phone from Bethesda, Maryland, and he is currently CEO of Berg Associates.
And, Larry Johnson, always nice to speak with you.
Mr. LARRY JOHNSON (CEO, Berg Associates): Hi, Neal.
CONAN: How do you think this agreement is going to affect the CIA on the ground?
Mr. JOHNSON: It's going to give them some reassurance that they're not going to be hung out to dry. I think what you've seen over the last month or so, particularly with leaks about the secret prisons in Europe, that there was real concern within at least some in the agency and the operations area that they were being set up to be the fall guys when things started going south. And, you know, I've got friends who have been on the ground in charge in operations in both Iraq and Afghanistan in particular, and three to be specific, and each of these gentlemen have told me that, you know, they saw no value and in fact thought torture, the idea of even using it, was counterproductive to what you're trying to accomplish and at the end of the day you're going to create more enemies than you're going to obtain valuable information. So I think this is going to be welcomed as taking them a little bit off the hot seat.
CONAN: And so there is the awkward period of what happens between those things that have happened in the past three our four years, though.
Mr. JOHNSON: Well, no, that's true. Most of--you know, it's important that people understand, CIA does not have trained interrogators. The interrogators that have come to work at the CIA have come out of military backgrounds. You know, just as an example, when I went through the training at Camp Perry and was held hostage for two days, the people doing the interrogation of us were Army personnel, active duty military. The military has an interrogation school out in Ft. Huachuca. The CIA has never had one. I don't know what they did during the Vietnam era, but I know that during the 1980s and into the 1990s, the CIA did not have an independent interrogator school. Its officers, case officers, were trained to do debriefings, not interrogations under duress.
CONAN: Let's get some callers on the line. This is--if you'd like to join us, by the way, (800) 989-8255. Or send us e-mail, email@example.com. This is Xander(ph) calling from Portland, Oregon.
XANDER (Caller): Hi there.
XANDER: One thing that just strikes me as kind of strange about the conversation so far is that it seems to assume that we haven't been engaged in torture in the past. And in fact US torture in Vietnam in the Phoenix program and training torturers in the School of the Americas is a, you know, well-documented longtime thing. So I'm wondering why, first of all, did the Bush administration feel it was necessary to make explicit that we could torture and would torture, and will it change anything if we make it explicit that we don't when, you know, a lot of people think we do and probably will continue to do so?
CONAN: Well, Michael Hirsh, why don't you try that? And I do have to say, Xander, the Bush administration's position all along is that the United States does not conduct torture. Definitions of torture, however, are, I guess, slippery sometimes, Michael.
Mr. HIRSH: Well, I mean, I would just first point out that it's not well-documented. I just don't think the caller is right about that. I know there have been a lot of stories over the years about what goes in the School of the Americas where, you know, Latin American military and paramilitaries were trained ostensibly by the CIA as well as a lot of stories about the Phoenix program in Vietnam. But whatever might have happened under those programs, there was never any kind of explicit authorization of torture. I'm not saying it never occurred, but the idea that it was US policy, official US policy is just not accurate.
XANDER: The manuals, which are part of the public record, you know, are textbooks in how to torture. And there's been congressional studies. It's all fully in the public record.
CONAN: Well, Xander, I'm afraid we're just going to have to agree to disagree on that in terms of the past.
But what about his other question, and briefly, Larry Johnson, 'cause we have to go to a break in a few seconds; do you believe things are really going to change now?
Mr. JOHNSON: Well, no, I think they're going to change. I mean, there has been this push to, you know, really, I guess, cross over some boundaries with some of the duress. You know, the notion of waterboarding people where you create the sensation of drowning is clearly crossing the line into what should be permissible under an interrogation. You know, personally, I've had sleep deprivation. I was forced to stand in place for two days. I didn't find that that harmed me psychologically. It was uncomfortable at the time, but it was not the kind of thing that, you know, I'd personally classify as torture. And perhaps this is not a subjective standard, but I think if you're willing to have it done to you, then it's probably OK to do it. If it's something that you're not willing to have done to you, that should be the standard for that you've crossed the line.
CONAN: Xander, thanks very much for the phone call.
XANDER: Thank you.
CONAN: We're going to continue talking about the deal reached between Senator John McCain and the Bush administration on an amendment that would ban cruel, inhuman and degrading treatment of suspects, no matter where they're being held, by any agent of the US.
This is TALK OF THE NATION from NPR News.
(Soundbite of music)
CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.
If you joined us hoping to hear our program about language in the workplace, we apologize. We're going to reschedule that program for another day. Today we are discussing news, a White House agreement to ban cruel, inhuman and degrading treatment of detainees in US custody anywhere around the world. Here's a tape of President Bush and Senator John McCain speaking earlier today.
President GEORGE W. BUSH: Senator McCain has been a leader to make sure that the United States of America upholds the values of America as we fight and win this war on terror. And we've been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the International Convention of Torture, whether it be here at home or abroad. And so we have worked very closely with the senator and others to achieve that objective as well as to provide protections for those who are on the front line of fighting the terrorists.
CONAN: President Bush in an appearance earlier today with Senator John McCain of Arizona, speaking after an agreement was reached to include the McCain amendment as part of the defense appropriations bill that's currently making its way through Congress.
Our guests are Michael Hirsh, a senior editor at Newsweek magazine, and Larry Johnson, a former CIA analyst and deputy director at the State Department for counterterrorism, now CEO of Berg Associates.
And let's bring another voice into the conversation, John Yoo, a former lawyer with the Justice Department under President Bush. He was involved with the Justice Department memos which spelled out White House policy on torture. And he joins us now by phone from Berkeley, California.
John Yoo, very good of you to speak with us today.
Professor JOHN YOO (University of California, Berkeley): Oh, thanks for having me.
CONAN: I wonder, what's your response to the announcement of an agreement on the McCain amendment?
Prof. YOO: Well, I think this has always been a question of balancing costs and benefits. And I think the benefit of being able to interrogate people aggressively was that they would yield information about potential attacks on the United States. And so I think some of the worst possible interrogation methods we've heard of in the press have been reserved for the leaders of al-Qaeda that we've captured, people like Abu Zubaydah or Khalid Sheik Mohammed or Ramzi Binalshibh, the, you know, number three, four and five people in al-Qaeda at the time they were captured and planners of the 9/11 attacks. And certainly there was never doubt there was any cost, which was harm to American foreign policy, harm to our image or, you know, our foreign policy views and cooperation from other countries. And I think what's happened is that the political leaders that we've elected have made that decision that at this point those interrogation methods, the costs they were generating in terms of political costs, outweigh the benefits that we were getting from interrogations.
CONAN: I guess those costs to some degree became evident on Secretary of State Condoleezza Rice's recent to visit to Europe, where this issue came up over and over and over again every single stop.
Prof. YOO: Yeah, I don't disagree with that. I've always thought that it became clear the last year, the year and a half, that there were very serious political costs. And I think the people we have elected and put into office had to make that kind of judgment about whether even despite those costs, the information we might get from interrogating al-Qaeda leaders would yield benefits that would be more important to the country. And I think at this point in the war on terrorism, the president and the senators who have access to, you know, the information that's not publicly available about who we have, how we're interrogating them and the information that it's yielding, have made that kind of judgment, that that's no longer worth the political costs we've been paying in the international arena.
CONAN: You've also spoken in the past about the other side of the conundrum, the fear that if you had someone with time-urgent information, all you could do under the McCain amendment was ask questions.
Prof. YOO: Yeah, I mean, I have to say I think that's really where we are now, is that if the McCain amendment is passed finally by the Congress, as I expect it would be now, what happens still in that situation? I mean, it's commonly referred to in law schools and journals and so on as the ticking time bomb hypothetical where you have someone in your hands who has information about an attack that might be, you know, a little bit of time away. And unfortunately I don't think that's a hypothetical anymore. I think that's a real problem that our, you know, politicians, our elected politicians have to deal with. And I'm not sure actually how the McCain amendment would deal with that, because the McCain amendment on its face, as you say, you're quite right. I think it would limit our government to mostly just asking oral questions, maybe playing psychological games through oral questioning, but it would pretty much limit interrogation even in that kind of situation of high-ranking al-Qaeda leaders. And I've heard, you know, comments that McCain has made and other people have made--well, if we were really in that kind of situation, you would expect the president to do what he would have to do. But I think the law now bars him from doing that.
CONAN: Larry Johnson, as a former CIA agent, let me ask you--or CIA analyst--I know you've talked to people about this kind of situation.
Mr. HIRSH: Right. And again, it really--it crosses a line. This notion that you're going to get the magic information--at the end of the day, when you're interrogating somebody, information they give you, you still have to go out and corroborate it. They don't just tell you something and you say, OK, that is now written by the finger of God and it's true and you immediately act on it. And so under duress, people will tell you anything. And one of the techniques that we were taught is--in being ourselves interrogated under duress is that you try to feed out information slowly over time because as time passes, certain sensitive information that you have is perishable and you can divulge it at some point, say, two or three days into the process and it's not going to damage an intelligence operation.
So, you know, I think at the end of the day, we have to come back and ask ourselves what are we--as a people, what are our values? If we justify invading Saddam Hussein in part because he had torture rooms and rape rooms and yet we ourselves will then argue that there is a point at which we're willing to torture and rape, well, then we make ourselves no different than Saddam Hussein because it's just a difference of degree. And I think we have to make a fundamental decision that there are certain things that we as civilized human beings who embrace Western philosophy will not do and will not permit to be done.
CONAN: Let's get another caller on the line. This is Sierra(ph). Sierra calling us from Tallahassee.
SIERRA (Caller): Hi. Yeah, I'm glad somebody made the connection between us being no better than Saddam Hussein. But my question was, as I understand it, the McCain amendment says that you're not allowed to do anything that's not on the Army manual. Now I read, I think last night, there's a 10-page secret addendum that's just been passed through that actually puts down exactly what you are and are not allowed to do in torture. And so far I haven't heard what's in it. I'm wondering if that has something to do with why McCain made a deal with the White House. Does anybody know what's in it?
CONAN: Just to clarify, Sierra, you're not allowed to torture at all. But anyway, Michael Hirsh, can you fill us in on the changes to the Army field manual?
Mr. HIRSH: No, it's classified. It's a classified annex and they're going to keep it classified because part of this is not letting the bad guys know what your interrogation techniques are, even if they're only psychological. But I would add that the McCain amendment, you know, makes clear that cruel, inhuman or degrading treatment is not allowed. And again, what that does is define this kind of treatment as whatever is prohibited by the Fifth, Eighth and 14th Amendments to the Constitution. So even though we don't know specifically what those techniques are, they would still have to fall under that restriction.
CONAN: And if this new field manual did call for things that went beyond the McCain amendment, clearly the McCain amendment would rule them illegal.
Mr. HIRSH: Right.
CONAN: All right.
SIERRA: Well, here's another question then. How do you enforce it?
Mr. HIRSH: I think you enforce it the same way you enforce all US laws, you know...
SIERRA: Yeah, but, I mean, we're talking--specifically, when you're talking about, like, forces overseas, like, with the Abu Ghraib problem, there were some soldiers who were tried, found guilty and have been, you know, put in prison. It hasn't gone up the chain. It hasn't necessarily been proven that the people above them either knew what they were doing or approved it. We still--I mean, that's still really iffy. I can't imagine some of the things that were going on, either hadn't been, you know--they'd been given the idea...
CONAN: Let me bring John Yoo in on that point about enforcing this.
Prof. YOO: Well, there'd be several ways to enforce it. I mean, one--first of all, I think as you said, the ban on torture itself is already established by federal criminal law. So anyone who engaged in torture would already be subject to enforcement by military and by the Justice Department. So this is a question of how you would enforce the new change in the McCain amendment, which is the ban on cruel, inhumane and degrading treatment. So, first of all, that would be, I think, through the McCain amendment and through the manual, it would now be a violation of military law for anyone to engage in that activity. So the people at Abu Ghraib, if they were to do--I think what they did at the time was illegal, but if they were to do what they did then now, that would be illegal under the McCain amendment and then they would be disciplined through the court-martial system, which is the system we have been using.
Now in terms of your questions about who knew higher up, you know, another thing you would not be able to claim, I believe, is that you were acting under legitimate orders now to engage in those kind of interrogation methods if there's a law that prohibits you from doing it. So to the extent there are people who were in command above the people who committed the crimes at Abu Ghraib, if they were to say, `Look, I was following legitimate orders,' they wouldn't be able to claim that as a defense anymore. And so we would still go through that method.
I don't think the McCain amendment actually makes it a crime to engage in cruel, inhumane and degrading treatment, so it would still be--more have to be enforced by the president and the head of the CIA and the head of the Defense Department issuing orders down through their agencies to prohibit people from engaging in those activities.
CONAN: Sierra, thanks very much for the call.
SIERRA: Thank you.
CONAN: Joining us now is White House correspondent David Greene. He's with us from the White House where preparations are under way for a Christmas party. David, good of you to take time to speak with us.
Ah, well, apparently he's getting a bowl of punch or something ready to get--we'll get back to him as soon as he gets that.
Let's take another caller. This is Steve. Steve with us from Jacksonville in Florida. Steve?
STEVE (Caller): Yes.
CONAN: You're on the air, go ahead, please.
STEVE: Hey, just real quick, I hear throughout this whole conversation the word `agreement,' but I also hear the word `deal.' And of course whenever a deal's made, it involves negotiation and a negotiation means one side's giving and another side's giving. And it's real obvious that the White House is giving on their side. I'm kind of wondering what Senator McCain gave up and what kind of an advantage he gave and where to the White House in exchange for this deal.
CONAN: Michael Hirsh, you would probably know that best.
Mr. HIRSH: Yeah. I mean, it's not completely clear because it's just been announced, but from what I understand, what McCain gave up was pretty minor, essentially allowing interrogators who are non-military protections under what's called Rule 916 of the Manual for Courts-Martial, which would allow them to invoke a defense of superior orders, as I was saying earlier, so they would have the benefit of counsel, as Senator McCain said. And the reason that that's in this particular bill is specifically for non-military, you know, CIA employees who might be doing interrogations in Defense Department facilities.
CONAN: But Senator McCain also said a pretty thin defense.
Mr. JOHNSON: Yes, so it really was not giving up very much in answer to the caller's question. This was, you know, quite a cave-in by the White House.
CONAN: Steve, more details may yet emerge. We'll have to watch carefully.
STEVE: Well, amid--accordingly, if I may.
CONAN: If you keep it quick.
STEVE: Wouldn't there also then be ahead of some kind of maybe a give-up just in the wording that says that the order giver won't be held accountable for charges that stem from any kind of an action that might go against the new bill?
CONAN: I'm sure that that's not in the legislation, Steve.
Mr. JOHNSON: Yeah.
CONAN: Thanks very much for the call.
Mr. JOHNSON: Oh.
CONAN: We're talking about news today of an agreement between the White House and Senator John McCain on the so-called torture amendment.
You're listening to TALK OF THE NATION from NPR News.
And now let's go to David Greene at the White House.
David, are you there?
DAVID GREENE reporting:
Hi, here. Hi, Neal.
CONAN: Ah, there you are. We were just afraid you were into your cups already.
GREENE: Not yet. Not yet.
CONAN: Now as I understand, there is still some--our understanding of this agreement is not yet perfect.
GREENE: It's not perfect. We're expecting some more details at some point.
CONAN: And when? When might that be?
GREENE: Excuse me. We'd like to know that as best you can. We got a hint from McCain and from the president. McCain said that he was satisfied that he will allow legal counsel and certain protections that a reasonable person might view as carrying out orders, but not to contradict the Nuremburg decision, which says that obeying orders is not a sufficient defense. The president mostly said that there was a deal, and he said he was happy to work with McCain and said that McCain's a good man, and he said there are protections in place that are good enough for him. It looks like there was a cave-in by the White House, and I think that's what will become clear as time goes on, but I think the president today just wanted to appear with McCain and make it clear that he wanted to send a message at least that the government of the United States does not torture.
CONAN: He did not make his threat, though, to veto any legislation that included the McCain amendment likely. What was it--Do you have any sense?--that forced him to back down?
GREENE: Well, there's no doubt, Neal, that politics certainly made it difficult for the White House. Whether or not you agree with their position substantively and technically, this was a very hard position politically to sustain. McCain, as you know, is a maverick Republican senator but one who's very popular and served in Vietnam; was a POW; has experience with the type of things that he's trying to restrict. And it was hard, even though the president went out there often, even though Secretary of State Condoleezza Rice and National Security Adviser Stephen Hadley kept repeating that the United States does not torture, it was hard politically to avoid the impression that this position on the McCain amendment was condoning torture, and I think they just ran out of time and realized that they had to have some sort of compromise and had to have an event like in the Oval Office with the president smiling and sitting down next to McCain.
CONAN: That, after the vote last night in the House of Representatives, though, as we also heard. Duncan Hunter, chairman of the House Armed Services Committee, is not entirely on board with the deal as yet. Have we heard anything also from Vice President Cheney, who was the champion of an exemption for CIA?
GREENE: We haven't yet, and the vice president, as he often is, has been very quiet on this issue. He--there were reports that he was really heavily lobbying a lot of Republicans in Congress to support an exemption for the CIA, and evidently that lobbying effort didn't turn out to be successful because we see the compromise today.
CONAN: McCain and Bush do not--their history has not always been quite so sunny. There was a primary election about--What?--six years ago. They came together on this out of political reality, I guess.
GREENE: I guess so. You know, every time you think that you've kind of gotten a feel for the relationship between President Bush and John McCain, something surprises you. They were bitter foes and in a presidential primary fight and then they came to some sort of an agreement, and McCain was actually campaigning for the president in the last campaign. But this time, he didn't hesitate. He stood up to the White House, and it would appear at this point that he got the White House to move his way.
CONAN: David Greene, NPR's White House correspondent. You can get back to the party now.
GREENE: Thanks, Neal.
CONAN: David Greene joined us from our White House booth there at the White House.
Larry Johnson, we wanted to thank you for your time today.
Mr. JOHNSON: Hey, thank you.
CONAN: Larry Johnson's a former CIA analyst, now CEO of Berg Associates, and we're going to ask Michael Hirsh and John Yoo to stay with us over the break to take more of your calls on this agreement that's been reached to define US policy on interrogation and restrict--indeed, ban--the use of cruel, inhumane or degrading treatment of detainees anywhere in the world.
I'm Neal Conan. You're listening to TALK OF THE NATION from NPR News.
CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.
Tomorrow it's "Science Friday." Join guest host Joe Palca and his guests to discuss neglected diseases and the challenges of treating disease in the developing world. That's tomorrow on TALK OF THE NATION/"Science Friday."
Right now we're discussing the McCain amendment. Senator McCain attached an amendment to the defense appropriations bill to ban cruel, inhuman and degrading treatment of anyone in US custody anywhere in the world. The Senate approved that measure by a vote of 90-to-9. After several weeks of wrangling with the White House, last night the House of Representatives voted in favor of the measure by a wide margin, and today President Bush, who vowed to veto any bill that included the McCain amendment, came around and accepted this as a political reality with minor changes.
Our guests are Michael Hirsh, a senior editor at Newsweek magazine, who's with us by phone from his office in Washington; John Yoo, a former lawyer with the Justice Department during President Bush's first term and currently a professor of law at the University of California at Berkeley. And joining us now is Tom Malinowski, a Washington advocacy director for Human Rights Watch.
And good of you to be with us today. Excuse me, Mr. Malinowski.
Mr. TOM MALINOWSKI (Human Rights Watch): Yes, hi.
CONAN: Hi there. Nice to have you on the program.
Mr. MALINOWSKI: Thank you.
CONAN: I was wondering if I could get your reaction to the news of the agreement on the McCain amendment.
Mr. MALINOWSKI: Well, I think it's very good news. I think it shows just how far the country has come on this question of torture since 9/11, going from the sort of anything-goes attitude that a lot of people expressed immediately after the attacks to a very profound sense that the torture and cruel treatment hurt America.
CONAN: And does this language, as far as you know it already--or now at least, does this go far enough, do you think?
Mr. MALINOWSKI: Well, I think it's very, very clear language. It absolutely, clearly without any ands, ifs or buts forbids the sort of cruel and inhumane treatment, which unfortunately has at least for some period of time been authorized by the administration for use against al-Qaeda suspects and prisoners in Iraq and Afghanistan. The administration can still try to find some complicated or clever legal arguments to get around it; it would be defying the will of Congress if it tried to do that.
CONAN: So that at this point do you think it's a settled issue?
Mr. MALINOWSKI: It's a settled issue as far as the members of Congress who voted for this, and I think it should remain a settled issue as far as the United States is concerned. I think if the Bush administration tries to find a clever way to get around this, as they have tried to do in similar efforts in the past, it would be a tremendous political mistake and it would continue the self-inflicted damage that the administration's policies have inflicted on the United States.
CONAN: Let's get another listener on the line. This is Justin. Justin, calling us from Vancouver in Washington.
JUSTIN (Caller): Hi. Good afternoon.
CONAN: Good afternoon.
JUSTIN: Are there any provisions in the McCain amendment that address the practice of turning over prisoners to allies with less restrictive interrogation techniques?
CONAN: Michael Hirsh?
Mr. HIRSH: Well, no, not in the McCain amendment. But as I was mentioning earlier, in the companion bill sponsored by Senator Lindsey Graham and co-sponsored by Carl Levin, the Democrat, it does address that, and I think Tom and other human rights activists may be somewhat upset this has not come out yet because it hasn't been announced. But from what I hear, there may well be a provision in that bill that allows evidence coming from coerced interrogations or coercive techniques, I should say, in other countries to be used against detainees at Gitmo and in other facilities in Afghanistan and Iraq. And that may, you know, be a subject of some controversy.
CONAN: Justin, thanks for the call.
JUSTIN: OK. Thanks.
CONAN: Let's go to Dave. Dave calling us from St. Louis.
DAVE (Caller): Yes, hi. Thanks for taking my call.
CONAN: Sure, Dave. Go ahead.
DAVE: If the Bush administration adamantly denies ever using torture, why not agree in the first place to the McCain amendment?
CONAN: John Yoo, let me ask you about that.
Mr. YOO: Well, the Bush administration always said it wasn't engaging in torture and that it was following the criminal laws prohibiting torture. The McCain amendment, the real fight about it, is not about torture. It's about what's called cruel, inhumane and degrading treatment, which is potential course of interrogation methods that are short of torture. For example, sleep deprivation I think would probably be a good example. That--there is no federal criminal law that prohibits that. We have signed a treaty which says the United States should undertake to prevent that, but the Bush administration's position was that there was no legal prohibition on something like sleep deprivation or other forms of cruel, inhumane and degrading treatment short of torture when it came to interrogation of members of al-Qaeda. And so the McCain amendment, I think, made a big change in the law there, and that's why the Bush administration I think for some time had resisted the amendment.
CONAN: And also because they thought that style of questioning had utility in the use against these high-ranking al-Qaeda prisoners.
Mr. YOO: Oh, certainly. I think, for example, the head of the CIA, Porter Goss, and the head of the Senate Intelligence Committee have said that the interrogation of people like Abu Zybaydah or Khalid Shaikh Mohammed had yielded good intelligence that had saved lives. But they haven't been and I don't think could be more specific than that in public.
DAVE: One more quick question, please?
CONAN: Sure, Dave.
DAVE: How could anybody possibly know what goes on inside a secret prison?
CONAN: Tom Malinowski?
Mr. MALINOWSKI: Well, that's why they're secret, so that no one can know what goes on inside of them. You know, I think one of the decisions the administration is going to face in the coming months and years is what to do with these prisoners who've been essentially disappeared into secret detention facilities around the world. and the only really good reason to hold people in secret, to hide them from International Committee for the Red Cross, for example, is to enable us to use interrogation techniques that we're ashamed of. The Congress has acted to forbid that kind of treatment, and I think that takes away the need to have these facilities.
DAVE: Does this mean, then, we're going to have Red Cross inspections of these sites?
Mr. MALINOWSKI: Well, the Congress hasn't required that yet. But the administration's under a lot of pressure. You know, it know--it's held some of these prisoners in facilities in European countries until recently. It's now had to move them. There are very few places around the world that are going to allow the United States to maintain secret facilities given the attention on this issue, the leaks that are coming out. I think as a practical matter, it's going to be very difficult for the administration to sustain a policy of holding people for years in secret facilities without even access to the Red Cross.
CONAN: And, Michael Hirsh, the advantage of having these people overseas was, according to the Bush administration's interpretation, that more aggressive questioning techniques were permitted overseas. As that advantage now is eliminated, is there any purpose to having prisons overseas?
Mr. HIRSH: Oh, yeah. I think they're going to continue, and I think that the caller's question is right on point. If they're secret and they remain secret, then how do you know what is being done and how could you enforce a law or a rule against abusive techniques, and the answer is you really can't. And in fact, you know, going back to this idea that US governments are now going to be limited in--you know, against ticking-time bomb scenarios, I don't think that's true. I think what this does is set a standard for what's allowable. I think that, you know, there's a lot of military lore about officers using techniques that contradict military regulation in order to do something heroic like save their unit, save their battalion, and that's, you know, what will happen here. I could foresee a case, for example, where a CIA officer used some abusive technique against a future Khalid Shaikh Mohammed and was perhaps brought up on charges because he violated this particular new law, but then, you know, was given a slap on the wrist or was perhaps even exonerated because people acknowledge that he did it to, you know, save a city or whatever the case might be. I mean, that's what's likely to happen. So I don't think that practically it's going to make that much difference in the small handful of cases that involve these truly dangerous terrorists.
CONAN: Michael Hirsh, I wanted to thank you, as always, for joining us today.
Mr. HIRSH: Thank you.
CONAN: Michael Hirsh, a senior editor at Newsweek magazine, joined us from his office there. John Yoo, before we let you go though, I did want to ask you about that point that Michael was just talking about.
Mr. YOO: Well, I mean, it's certainly the case as a matter of reality that people in the field, if they come to some decision that they want to employ these course of interrogation methods short of torture or even engage in torture, the law can't prevent them right there from doing it. But I don't agree with what he said at the end, that that means that people won't feel any restraint. I mean, the law has penalties for violating it and it will be, I think, present in people's minds that if they were to do that they will be prosecuted after, or they will be brought up on charges, or they will be sanctioned by the military system. And so, you know, we can't--the law's not going to prevent people on the spot in the field from doing what they feel is necessary to protect their lives or the lives of their unit, but you know, this new standard will I think go into training and people will be trained not to do it, and they will be told very specifically that if they do engage in any kinds of these interrogations, they will be potentially prosecuted and punished. So I think that will have a significant effect on the way people conduct interrogations in the future.
CONAN: John Yoo, thanks very much for being with us.
Mr. YOO: Thank you.
CONAN: John Yoo, a former lawyer with the Justice Department, currently a professor of law at the University of California at Berkeley, and joined us by phone from his office there.
And our thanks as well to Tom Malinowski. Appreciate you being with us today.
Mr. MALINOWSKI: Thank you.
CONAN: Tom Malinowski's the Washington advocacy director for Human Rights Watch.
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