The Restless Wave

by John McCain

  Both of these arguments stem from the larger question, the most important question that this generation will answer. Do we sacrifice our ideals in order to preserve security? Terrorism inspires fear and suppresses ideals like freedom and individual rights. Overcoming the fear posed by terrorist threats is a tremendous test of our courage. Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is “America.”

  Once again, I strongly urge you to do justice to your men and women in uniform. Give them clear standards of conduct that reflect the ideals they risk their lives for.

  With the Utmost Respect,

  —Capt. Ian Fishback

  1st Battalion,

  504th Parachute Infantry Regiment,

  82nd Airborne Division,

  Fort Bragg, North Carolina

  “I would rather die fighting than give up the smallest part of the idea that is ‘America.’ ” If there is a finer declaration of an American soldier’s duty and sense of honor, I haven’t heard it. I met with Captain Fishback, and was as impressed with his genuineness and professionalism in person as I had been with the qualities evident in his letter. I assured him he was right to have reached outside his chain of command to bring his legitimate concerns to responsible public officials, and that I and others in Congress were already working to make sure that, as he affirmed, the United States would “confront danger and adversity in order to preserve our ideals.”

  Our first effort to do just that was the Detainee Treatment Act of 2005, which Senator Warner and Lindsey Graham and I offered to that year’s defense appropriations bill. It had two main provisions: first, that interrogations of detainees by U.S. military or civilian Defense Department officials must adhere to the strict guidance for treating enemy prisoners provided in the Army Field Manual; second, that all other agencies of the federal government, including the CIA, are prohibited from the “cruel, inhuman or degrading” treatment of any prisoner “regardless of nationality or physical location.”

  White House opposition to the resolution was initially fierce, spearheaded by the vice president and his staff, and the new CIA director, Porter Goss. Before they had seen the text of the resolution the administration had put out a statement opposing it. Cheney and Goss came to see me in a secure room in the Capitol and laid out what they claimed was valuable intelligence obtained through enhanced interrogation techniques that had prevented new terrorist attacks. They walked me through the techniques, downplaying their actual severity. At one point, we got in a back-and-forth over sleep deprivation. “How long are you keeping them awake?” I asked. They eventually acknowledged that some detainees had been deprived of sleep for as much as 120 hours. “I had a friend, a Marine, who was kept awake for a week,” I observed. “It almost killed him.”

  They also intimated that if our resolution passed the techniques would be discontinued and I would have American blood on my hands. That was a misjudgment on their part. All their crude attempt to shame me did was anger me, and make me deeply suspicious about the credit they were giving torture. I knew from personal experience that every man has his breaking point, and would yield to torture at some point. But I knew, too, that information extracted by torture is unreliable. You say anything to make it stop, true, false, or just fed to you by your torturers. An aide to the vice president, David Addington, handed me an amendment to the resolution he had prepared that would have excluded the CIA from the prohibition against cruel, inhuman, and degrading treatment. That would have been worse than doing nothing.

  There were additional meetings with Vice President Cheney and his staff for the Republican senators supporting our resolution; a few got wobbly, but only nine Republican senators ended up opposing it. We also discouraged Senate Democrats, all of whom supported the resolution, from formally co-sponsoring it. We wanted the effort to be seen as a revolt of Republican hawks, which we believed would have a greater restraining impact on the administration.

  The lobbying by the vice president and associates was persistent and intense, and it provoked unflattering attention on the editorial pages of the nation’s newspapers. Eventually, in a sign that the President wanted the matter resolved, his national security advisor, Steve Hadley, contacted us. Richard Fontaine had once worked for Hadley, and he advised me that when Hadley took the lead in negotiations it was an indication the President wants a deal. The discussions dragged on a few more weeks. We eventually agreed to some fairly minor language changes that left the major provisions intact.

  In the end, the resolution passed the Senate by 90 to 9. After the President signed the underlying bill into law, the White House released a statement that the President as commander in chief would construe the detainee protections consistent with his duty to protect “the American people from further terrorist attacks.” In other words, administration officials refused to acknowledge they were absolutely bound by the prohibitions. We would have to find another way to convince them they were.

  An opportunity to do so was presented by the Supreme Court’s decision in Hamdan v. Rumsfeld, which found, among other things, that Common Article 3 applied to our treatment of al-Qaeda prisoners, and that their detention must comply with the Geneva Conventions. The administration determined that the only way around the decision’s ramifications for the legality of the EITs was to water down the meaning of Common Article 3, an idea that was, to say the least, abhorrent to me. They proposed to weaken the Article’s protections so they could continue abusive interrogations and still claim they were legal. The notion that abuse that included waterboarding was permitted by the Geneva Conventions was as bizarre as it was unacceptable.

  I was worried that Congress, needing to act in response to the Hamdan decision, would go along with the administration’s wishes. So I was willing to talk. Initially, our discussions were focused on using military commissions to adjudicate the cases of detainees held at Guantánamo. During the course of examining the bill language they proposed, we noticed the changes to Common Article 3. Fontaine conveyed my objections to the NSC, and a succession of high-profile officials including DCI Mike Hayden, NSA Steve Hadley, and the new head of the Justice Department’s Office of Legal Counsel, Steven Bradbury, who had been involved in preparing parts of the torture memos, were dispatched to change my mind. It was clear that Hayden wanted legal cover from Justice that would allow the continued use of the EITs, and, perhaps more important, that protected the CIA from legal jeopardy for their past use. Bradbury was willing to provide it but only if Congress gave him cover. Hadley wanted to find a deal.

  Efforts were made again to persuade me that the EITs, including waterboarding, were not torture. They included a briefing with a young officer who had waterboarded detainees and assured me it was done safely and did not do lasting harm to the victims. Hayden and company met with my staff, too, namely Fontaine and Salter, who weren’t persuaded, and explained that it wouldn’t matter if they were because I was unmovable. Eventually we began negotiating provisions of what would become the Military Commissions Act of 2006. Lindsey, an Air Force Reserve lawyer, and my Arizona colleague Jon Kyl, took the lead on working out the terms of the military commissions. I focused on protecting the Geneva Conventions. Our bottom line demand was that the clear intent of the Conventions could not be altered, and any language we agreed to must have the effect of prohibiting the continued use of waterboarding and other extreme practices. After weeks of talks, we reached a compromise.

  There are two kinds of breaches of Common Article 3, grave and nongrave. Grave breaches are prosecutable under the war crimes statute. Nongrave breaches are not prosecutable as war crimes. The administration position was that the Article was vague on what constituted grave and nongrave breaches.
They wanted the President to proclaim those definitions. Eventually, we agreed to let the President enumerate nongrave breaches so long as the standards he promulgated were higher than those that currently existed. To my regret, the administration did not adhere to the clear intent of the agreement. They never enumerated nongrave breaches or established higher standards.

  Grave breaches were already enumerated in the War Crimes Act of 1996, and it was there that I wanted to restrict the administration from resuming the worst abuses. In fairness, the administration had not to my knowledge waterboarded another detainee since passage of the Detainee Treatment Act the year before and had refrained from some of the other techniques as well, believing, I assume, that they would likely violate the act’s prohibitions. Still, no one in authority had ever conceded that waterboarding or any other interrogation technique was torture and thus prohibited, and I wanted more certainty that the CIA would not resort to using such techniques in the future.

  In the last week of September 2006, Salter, Fontaine, and I joined in marathon negotiating sessions with administration officials, including Hadley and Bradbury, in a hearing room in the Dirksen Senate Office Building. Having agreed to allow the President to enumerate nongrave breaches, we searched for a way to define grave breaches that would prevent the resumption of waterboarding and other abuses.

  The solution we arrived at involved amending the War Crimes Act of 1996 to define nine offenses that constituted grave breaches of Common Article 3, prosecutable as war crimes and punishable by imprisonment or death. The first offense was “torture,” the second, “cruel and inhuman treatment.” Torture included acts that were “intended to inflict severe physical or mental pain and suffering.” The prohibition against cruel and inhuman treatment added the descriptor “serious” to “physical and mental suffering.” Serious mental pain and suffering was defined in the act as “prolonged.” That adjective was easy to exploit, as the authors of the torture memos had, interpreting it to mean months and years of suffering. They had used its vagueness to allow waterboarding. I asked Hadley and Bradbury to remove the word from the definition, and recommended a substitute, “non-transitory,” and lest that be interpreted as synonymous with “prolonged,” we added in parentheses “which need not be prolonged.” They said they could accept the former but not the latter. We insisted, and eventually they acquiesced, but only if we agreed that the new definition would not be retroactive, that it would apply only to conduct after the bill’s date of enactment.

  The reason was obvious: they felt the new definition of cruel and inhuman treatment made waterboarding and likely some of the other EITs prosecutable as war crimes. With that in mind, I asked Bradbury if he believed the new definition would prohibit waterboarding in the future. He answered that he believed it would. Hadley concurred. And although neither man nor anyone else in the administration ever acknowledged publicly that the revised statute made waterboarding a war crime, I am confident that it did, and so were they. The practice was not used again. I believed that whatever protection from legal jeopardy the date of enactment condition gave the Agency was acceptable in exchange for preventing the resumption of the worst practices.

  Throughout our negotiations with the administration, we kept in close touch with Tom Malinowski at Human Rights Watch and Elisa Massimino, the president of Human Rights First. We had good working relationships with both of them based on mutual trust. The human rights community, including Tom’s and Elisa’s organizations, opposed the Military Commissions Act, although their biggest objection to the bill was the denial of habeas corpus in the provisions establishing the commissions, which I had not been involved in negotiating. The critics had a point, as was evidenced by the Supreme Court’s 2008 decision in Boumediene v. Bush, which held that the suspension of habeas was unconstitutional.

  Their principal concerns with our efforts were our agreement that the Bush administration could define nongrave breaches of Common Article 3 and that our revisions to the War Crimes Act weren’t retroactive, making the use of EITs before the MCA harder to prosecute. Despite those concerns, I think Tom and Elisa recognized we had prevented the Geneva Conventions from being weakened, and had imposed a formidable legal obstacle to the worst interrogation practices. The MCA passed both houses of Congress easily but without much Democratic support, and to little applause and a fair amount of criticism. In July 2007, President Bush signed an executive order that, instead of establishing higher standards for nongrave breaches, stated that the CIA’s detention and interrogation program “fully complies with the obligations of the United States under Common Article Three.” That was predictable, critics in the human rights community argued. Perhaps so. In December of that year, the New York Times reported that tape recordings of CIA interrogations had been destroyed on Jose Rodriguez’s order. That, too, angered me, and eroded further my already diminished store of trust in the good faith of the Agency’s leadership.

  Nevertheless, I believed I had achieved what I had set out to achieve—protecting the Geneva Conventions and stopping waterboarding, and I honored my end of the bargain by not restricting the CIA interrogations more than I already had. In February 2008, I voted against a Senate resolution that President Bush had promised to veto, which would have limited CIA interrogators to the practices approved in the Army Field Manual. I received a fair amount of abuse in the editorial pages for that vote and from human rights advocates, even some with whom I worked closely. I was the front-runner for the Republican presidential nomination at the time of the vote, which drew a bigger crowd of Democratic critics than it normally would have. But on this issue, I don’t need any more approval than a quiet conscience.

  • • •

  With the death of Osama bin Laden in May 2011 came fresh reminders that the torture debate had not ended. As long as serious men and women argued for torture’s efficacy the United States would be at risk of staining our honor again by resorting to the abuses that our enemies could use to encourage mistrust of our leadership and cynicism about our values.

  In one of his first acts as President, Barack Obama rescinded President Bush’s executive order claiming the CIA had acted in full compliance with Common Article 3, and he withdrew the Agency’s authority to hold detainees and restricted their interrogations to those approved in the Army Field Manual. He and Attorney General Eric Holder would eventually decide not to prosecute interrogation abuses during his predecessor’s administration. But when bin Laden finally met the fate he deserved, the apologists for torture appeared in numbers on cable news shows and in the newspapers claiming bin Laden wouldn’t have been found without intelligence gained through the use of EITs. Article number one in their reinvigorated apologia was information coerced from Khalid Sheikh Mohammed after he was waterboarded repeatedly. No less an authority than former attorney general Michael Mukasey stepped forward to claim in the Wall Street Journal that:

  The intelligence that led to bin Laden . . . began with a disclosure from Khalid Sheikh Mohammed, who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information—including eventually the nickname of a trusted courier of bin Laden.

  Virtually nothing in that statement is true. But as angered as I was at the time by Mukasey’s disingenuousness, I would learn later that he wasn’t entirely to blame. CIA officials had misled him as they had other Justice officials, and, as it turns out, as they misled senior White House officials, including President Bush and Vice President Cheney.

  The first mention of bin Laden’s courier’s pseudonym, Abu Ahmed al-Kuwaiti, came from a detainee held in another country, who was not waterboarded or otherwise tortured, and who identified Kuwaiti as an important figure in al-Qaeda. When interrogators confronted KSM with the name, he claimed Kuwaiti wasn’t active in al-Qaeda, had married, and had moved to Peshawar in Pakistan, none of which was true. The best intelligence on Kuwaiti’s real role in al-Qaeda and his relationship to bin Laden came to us from a det
ainee who was questioned using standard, noncoercive means by interrogators who had done the most essential thing in questioning a suspect. They had gained his trust. In truth, most of the CIA’s claims that abusive interrogations of detainees had produced vital leads to help locate bin Laden were exaggerated, misleading, and in some cases, complete bullshit. We would learn the truth from the same investigation that revealed how the CIA had misled Bush administration officials. We learned it from the persistent, scrupulous, determined investigation of the CIA’s use of enhanced interrogation techniques by the Senate Select Committee on Intelligence, chaired by Senator Dianne Feinstein.

  Begun early in 2009, partly out of concern that Jose Rodriguez’s destruction of interrogation video recordings might be part of an effort to cover up the unlawful torture of detainees, the investigation would examine millions of emails, cables, communiqués, and other documents related to the CIA’s detention and interrogation program between the years 2001 and 2006. After 2006, the Agency was believed to have stopped using most of the techniques in question. After nearly four years, tens of millions of dollars, countless man hours of dogged inquiry, examination, and analyses, unexpected good luck, a lack of bipartisan cooperation, and an attempt by the Agency to spy on committee investigators, the committee approved a six-thousand-page report almost on a strict party-line vote, with Susan Collins the only Republican voting with the committee majority. Two years later, over the furious objections of the CIA and senior officials in the Obama administration, the committee publicly released a 525-page, unclassified, overly redacted, meticulously footnoted, and damning summary. The following are some of its findings.

  The CIA’s enhanced interrogation techniques were ineffective at acquiring good intelligence. Interrogations of detainees were much more brutal than the Agency had acknowledged. Some detainees were subjected to abuses not authorized by CIA leadership or the Justice Department. The CIA made inaccurate claims for the effectiveness of the techniques. It misled the Department of Justice and other executive branch offices. It impeded congressional oversight, the CIA inspector general’s investigation, and White House oversight and decision making. DCIs George Tenet, Porter Goss, and Michael Hayden misled the White House, Congress, and the Director of National Intelligence about the program’s effectiveness. The CIA planted false stories in the press. It lied about the value of intelligence extracted from abused detainees. At least twenty-six of the 119 detainees held by the CIA were subsequently found to have been innocent. Many of them were tortured. Torture inflicted on detainees included force-feeding and hydrating prisoners anally, and rectal examinations using “excessive force”; mock executions and at least one instance of forcing a prisoner to play Russian roulette; prisoners kept awake for a week, and one kept in a coffin-sized confinement box for eleven days; forcing a detainee to stand and stay awake for nearly three days; prisoners denied waste buckets; kept short-shackled and naked in darkened cold cells, with constant white noise; prisoners slapped, punched, slammed against walls and cement floors.