!! History Commons Alert, Exciting News

Context of 'April 26, 2009: McCain Says US Should Not Investigate Bush Torture Policies, Admits Bush Officials Violated Law'

This is a scalable context timeline. It contains events related to the event April 26, 2009: McCain Says US Should Not Investigate Bush Torture Policies, Admits Bush Officials Violated Law. You can narrow or broaden the context of this timeline by adjusting the zoom level. The lower the scale, the more relevant the items on average will be, while the higher the scale, the less relevant the items, on average, will be.

Jay Bybee.Jay Bybee. [Source: Public domain]The Justice Department’s Office of Legal Counsel (OLC) sends a non-classified memo to White House Counsel Alberto Gonzales, offering the opinion that a policy allowing suspected al-Qaeda members to be tortured abroad “may be justified.” [US Department of Justice, 8/1/2002 pdf file] This memo will later be nicknamed the “Golden Shield” by insiders in the hopes that it will protect government officials from later being charged with war crimes (see April 2002 and After). [ABC News, 4/9/2008]
Multiple Authors - The 50-page “torture memo” is signed and authored by Jay S. Bybee, head of OLC, and co-authored by John Yoo, a deputy assistant attorney general. It is later revealed that Yoo authored the memo himself, in close consultation with Vice President Cheney’s chief adviser David Addington, and Bybee just signed off on it (see December 2003-June 2004). [Washington Post, 6/9/2004] Deputy White House counsel Timothy Flanigan also contributed to the memo. Addington contributed the claim that the president may authorize any interrogation method, even if it is plainly torture. Addington’s reasoning: US and treaty law “do not apply” to the commander in chief, because Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/25/2007]
Statute Only Prohibits 'Extreme Acts' - Gonzales had formally asked for the OLC’s legal opinion in response to a request by the CIA for legal guidance. A former administration official, quoted by the Washington Post, says the CIA “was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them.” [Washington Post, 6/9/2004] “We conclude that the statute, taken as a whole,” Bybee and Yoo write, “makes plain that it prohibits only extreme acts.” Addressing the question of what exactly constitute such acts of an extreme nature, the authors proceed to define torture as the infliction of “physical pain” that is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Purely mental pain or suffering can also amount to “torture under Section 2340,” but only if it results “in significant psychological harm of significant duration, e.g. lasting for months or even years.” [Washington Post, 6/9/2004]
Torture Legal and Defensible - Bybee and Yoo appear to conclude that any act short of torture, even though it may be cruel, inhuman or degrading, would be permissible. They examine, for example, “international decisions regarding the use of sensory deprivation techniques.” These cases, they notice, “make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.” More astounding is Bybee and Yoo’s view that even torture can be defensible. “We conclude,” they write, “that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.” Inflicting physical or mental pain might be justified, Bybee and Yoo argue, “in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” In other words, necessity or self-defense may justify torture. Moreover, “necessity and self-defense could provide justifications that would eliminate any criminal liability.” [Washington Post, 6/8/2004] International anti-torture rules, furthermore, “may be unconstitutional if applied to interrogations” of suspected terrorists. [US News and World Report, 6/21/2004] Laws prohibiting torture would “not apply to the president’s detention and interrogation of enemy combatants” in the “war on terror,” because the president has constitutional authority to conduct a military campaign. [Washington Post, 6/27/2004]
Protecting US Officials from Prosecution - In 2007, author and reporter Charlie Savage will write: “In case an interrogator was ever prosecuted for violating the antitorture law (see October 21, 1994 and January 26, 1998, Yoo laid out page after page of legal defenses he could mount to get the charges dismissed. And should someone balk at this strained interpretation of the law, Yoo offered his usual trump card: Applying the antitorture law to interrogations authorized by the president would be unconstitutional, since only the commander in chief could set standards for questioning prisoners.” [Savage, 2007, pp. 155-156]
Virtually Unrestricted Authority of President - “As commander in chief,” the memo argues, “the president has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy.” [Washington Post, 6/9/2004] According to some critics, this judgment—which will be echoed in a March 2003 draft Pentagon report (see March 6, 2003)—ignores important past rulings such as the 1952 Supreme Court decision in Youngstown Steel and Tube Co v. Sawyer, which determined that the president, even in wartime, is subject to US laws. [Washington Post, 6/9/2004] The memo also says that US Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/27/2004]
Ashcroft Refuses to Release Memo - After the memo’s existence is revealed, Attorney General John Ashcroft denies senators’ requests to release it, and refuses to say if or how the president was involved in the discussion. “The president has a right to hear advice from his attorney general, in confidence,” he says. [New York Times, 6/8/2004; Bloomberg, 6/8/2004; Washington Post, 6/9/2004] Privately, Ashcroft is so irritated by Yoo’s hand-in-glove work with the White House that he begins disparagingly referring to him as “Dr. Yes.” [New York Times, 10/4/2007]
Only 'Analytical' - Responding to questions about the memo, White House press secretary Scott McClellan will claim that the memo “was not prepared to provide advice on specific methods or techniques,” but was “analytical.” But the 50-page memo seems to have been considered immensely important, given its length and the fact that it was signed by Bybee. “Given the topic and length of opinion, it had to get pretty high-level attention,” Beth Nolan, a former White House counsel from 1999-2001, will tell reporters. This view is confirmed by another former Office of Legal Counsel lawyer who says that unlike documents signed by deputies in the Office of Legal Counsel, memorandums signed by the Office’s head are considered legally binding. [Washington Post, 6/9/2004]
Memo Will be Withdrawn - Almost two years later, the OLC’s new head, Jack Goldsmith, will withdraw the torture memos, fearing that they go far beyond anything countenanced by US law (see December 2003-June 2004).
Memo Addresses CIA Concerns - The administration, particularly the axis of neoconservatives centered around Cheney’s office, has enthusiastically advocated the use of violent, abusive, and sometimes tortuous interrogation techniques, though the US has never endorsed such tactics before, and many experts say such techniques are counterproductive. The CIA, responding to the desires from the White House, hastily put together a rough program after consulting with intelligence officials from Egypt and Saudi Arabia, where detainees are routinely tortured and killed in captivity, and after studying methods used by former Soviet Union interrogators. The legal questions were continuous. The former deputy legal counsel for the CIA’s Counterterrorist Center, Paul Kelbaugh, recalls in 2007: “We were getting asked about combinations—‘Can we do this and this at the same time?… These approved techniques, say, withholding food, and 50-degree temperature—can they be combined?’ Or ‘Do I have to do the less extreme before the more extreme?’” The “torture memo” is designed to address these concerns. [New York Times, 10/4/2007]

Entity Tags: John C. Yoo, Paul Kelbaugh, Timothy E. Flanigan, Scott McClellan, John Ashcroft, Richard (“Dick”) Cheney, Jay S. Bybee, Office of Legal Counsel (DOJ), David S. Addington, Alberto R. Gonzales, Beth Nolan, Al-Qaeda, Charlie Savage, Central Intelligence Agency, Jack Goldsmith

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Senator John McCain (R-AZ) introduces an amendment to the annual legislation to fund the Defense Department. McCain’s amendment, co-sponsored by Senate Armed Services Committee chairman John Warner (R-VA) and Senator Lindsey Graham (R-SC), a former military lawyer, states that military interrogators cannot exceed the limits on detainee treatment set forth in the US Army Field Manual. In essence, the amendment would prohibit the use of harsh interrogation techniques that many, including McCain, feel constitute torture. The Field Manual limits were specifically written to comply with the Geneva Conventions. The amendment also prohibits US officials, including CIA agents, from inflicting not just torture but any form of “cruel, inhuman, and degrading treatment” on anyone in their custody, no matter where in the world the prisoner is being kept. The amendment, later known as the McCain Amendment or the McCain Torture Ban, becomes the subject of fierce, largely private negotiations between McCain and the White House. Vice President Cheney quickly lobbies friendly Republicans in Congress to oppose the amendment, and has private meetings with Warner and McCain. At Cheney’s behest, Senate Majority Leader Bill Frist (R-TN) withdraws the entire bill from consideration rather than allow it to pass with the McCain amendment attached. [Savage, 2007, pp. 220-221]

Entity Tags: Geneva Conventions, Bill Frist, Central Intelligence Agency, Detainee Treatment Act, Richard (“Dick”) Cheney, John McCain, US Department of Defense, Lindsey Graham, John W. Warner

Timeline Tags: Civil Liberties

Senator John McCain (R-AZ), an ardent opponent of torture by US officials (see November 21, 2005), continues to press an amendment to a $440 billion defense appropriations bill that prohibits cruel, inhuman, and degrading treatment of prisoners held in US captivity (see July 24, 2005 and After). The bill also posits the US Army Field Manual as the uniform standard for interrogations by any Defense Department personnel. The Field Manual is being revised, and Pentagon sources have claimed the revisions will include a section on the importance of following the Geneva Conventions. The amendment is facing stiff opposition from the White House, which asserts that it would encroach on the power of the president as the commander in chief, and would threaten national security by reducing the ability of military interrogators to obtain critical intelligence from prisoners. On the floor of the Senate, McCain reads a letter from former Secretary of State Colin Powell, who had opposed Vice President Cheney on the issue of torture. Powell writes: “Our troops need to hear from Congress. The world will note that America is making a clear statement with respect to the expected future behavior of our soldiers.” McCain himself calls the White House’s legal theories on torture “strange,” and warns that enemies could use America’s justifications of torture as justifications for the torture of US captives. “We are Americans and we hold ourselves to humane standards of treatment of people no matter how evil or terrible they may be,” he says. Terrorists “don’t deserve our sympathy. But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.” The White House continues to oppose the amendment. President Bush threatens to veto the entire bill, and Cheney circulates pro-torture talking points to friendly Congressional Republicans. Cheney, with CIA Director Porter Goss in tow, asks McCain to exempt CIA officials from the anti-torture amendment at the discretion of the president; McCain refuses. McCain is bolstered by a letter signed by over two dozen retired generals urging Congress to pass the amendment, including Powell and former Joint Chiefs chairman General John Shalikashvili. The amendment passes the Senate 90 to nine. However, the House leadership, steered by Speaker Dennis Hastert (R-IL), refuses to allow the amendment into the House version by refusing to let the House vote on it at all. It will take a House-Senate conference committee to decide the fate of the amendment. [Dubose and Bernstein, 2006, pp. 195; Savage, 2007, pp. 221]

Entity Tags: George W. Bush, Bush administration (43), Colin Powell, Dennis Hastert, US Department of Defense, Richard (“Dick”) Cheney, John McCain, Porter J. Goss, John M. Shalikashvili

Timeline Tags: Civil Liberties

McCain speaking against torture on Fox News.McCain speaking against torture on Fox News. [Source: Daily Gadfly (.com)]Senator John McCain (R-AZ), a former prisoner of war during the Vietnam War and a victim of torture, writes an impassioned op-ed for Newsweek exhorting the US not to resort to torture in its interrogations of terror suspects. He writes: “I do, respectfully, take issue with the position that the demands of this war require us to accord a lower station to the moral imperatives that should govern our conduct in war and peace when they come in conflict with the unyielding inhumanity of our vicious enemy.… We should not torture or treat inhumanely terrorists we have captured. The abuse of prisoners harms, not helps, our war effort.”
Produces False Information - He gives numerous reasons: abusing prisoners does not produce reliable information, but instead “often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear—whether it is true or false—if he believes it will relieve his suffering.” McCain recounts his own example of providing false information under torture, giving his captors the names of the Green Bay Packers’ offensive line instead of the names of his flight squadron. “It seems probable to me that the terrorists we interrogate under less than humane standards of treatment are also likely to resort to deceptive answers that are perhaps less provably false than that which I once offered.”
Betrays America's 'Commitment to Basic Humanitarian Values' - Moreover, McCain writes, America’s “commitment to basic humanitarian values affects—in part—the willingness of other nations to do the same. Mistreatment of enemy prisoners endangers our own troops who might someday be held captive.” We cannot expect al-Qaeda and other such enemies to be “bound by the principle of reciprocity,” but “we should have concern for those Americans captured by more traditional enemies, if not in this war then in the next.” Global public criticism of North Vietnam’s brutality towards US prisoners resulted in a substantial decrease in their abuse of POWs. The war against terrorism is “a war of ideas,” he writes, “a struggle to advance freedom in the face of terror in places where oppressive rule has bred the malevolence that creates terrorists. Prisoner abuses exact a terrible toll on us in this war of ideas. They inevitably become public, and when they do they threaten our moral standing, and expose us to false but widely disseminated charges that democracies are no more inherently idealistic and moral than other regimes.” To defeat the idea of terrorism, “we must prevail in our defense of American political values as well. The mistreatment of prisoners greatly injures that effort.”
'We Are Different and Better than Our Enemies' - McCain writes that while he does not “mourn the loss of any terrorist’s life… [w]hat I do mourn is what we lose when by official policy or official neglect we allow, confuse, or encourage our soldiers to forget that best sense of ourselves, that which is our greatest strength—that we are different and better than our enemies, that we fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed by their Creator with inalienable rights.”
Waterboarding Is Torture - McCain states flatly that any interrogation technique that simulates an execution, including waterboarding, is torture. “[I]f you gave people who have suffered abuse as prisoners a choice between a beating and a mock execution, many, including me, would choose a beating. The effects of most beatings heal. The memory of an execution will haunt someone for a very long time and damage his or her psyche in ways that may never heal. In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.”
Exceptions Do Not Require New Laws - There is always the extreme circumstance bandied about in discussions: what should be done with a terror suspect who holds critical information about an imminent terrorist attack? While such an extreme circumstance may well require extreme interrogation methods, McCain writes, “I don’t believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane, and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America’s purposes and practices.” [Newsweek, 11/21/2005]

Entity Tags: John McCain

Timeline Tags: Torture of US Captives

The Army adopts a new, classified set of interrogation methods that some feel may change the nature of the debate over cruel and inhuman treatment of detainees in US custody. The Detainee Treatment Act (DTA—see December 30, 2005), which bases its definition of torture in part on Army standards, is currently wending its way through Congress. The new set of instructions are being added to the revised Army Field Manual, after they are approved by undersecretary of defense Stephen Cambone. The addendum provides exact details on what kinds of interrogation procedures can and cannot be used, and under what circumstances, pushing the legal limit of what interrogations can be used in ways that the Army has never done before. Some military observers believe that the new guidelines are an attempt by the Army to undercut the DTA, and many believe the bill’s sponsor, Senator John McCain (R-AZ) will be unhappy with the addendum. “This is a stick in McCain’s eye,” one official says. “It goes right up to the edge. He’s not going to be comfortable with this.” McCain has not yet been briefed on the contents of the new guidelines. McCain spokesman Mark Salter says, “This is politically obtuse and damaging. The Pentagon hasn’t done one molecule of political due diligence on this.” One Army officer says that the core of the definition of torture—what is and is not “cruel, inhumane, and degrading” treatment—“is at the crux of the problem, but we’ve never defined that.” The new Army Field Manual specifically prohibits such tactics as stress positioning, stripping prisoners, imposing dietary restrictions, using police dogs to intimidate prisoners, and sleep deprivation. The new manual is expected to be issued before the end of the year. [New York Times, 12/14/2005] The day after this is reported, President Bush agrees not to veto the DTA (see December 15, 2005).

Entity Tags: Stephen A. Cambone, Detainee Treatment Act, US Department of Defense, John McCain, US Department of the Army

Timeline Tags: Torture of US Captives, Civil Liberties

The Bush administration relents in its opposition to the Detainee Treatment Act (DTA), which would ban torture of prisoners by US personnel (see July 24, 2005 and After and December 30, 2005). President Bush meets with the bill’s primary sponsor, Senator John McCain (R-AZ), and John Warner (R-VA), chairman of the Senate Armed Service Committee, in a press conference to praise the bill. McCain says after the conference that the bill “is a done deal.” The bill still faces some opposition from Congressional Republicans such as House Armed Services Committee chairman Duncan Hunter (R-CA), who says he won’t vote for the bill unless it can be amended to ensure that the nation’s ability to gather intelligence is not diminished. Both the House and Senate have voted by veto-proof margins to accept the bill, which is actually an amendment to a defense appropriations bill. McCain says after the conference with Bush and Warner, “We’ve sent a message to the world that the United States is not like the terrorists. We have no grief for them, but what we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are.” Bush says the ban “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.” McCain has been the target of months of vilification and opposition from the White House over the bill, which argued that the bill would limit Bush’s authority to protect the US from terrorist attacks, and that the bill is unnecessary because US officials do not torture. [CNN, 12/15/2005]
Loopholes - But the bill contains key loopholes that some experts believe significantly waters down the bill’s impact. Author Alfred McCoy, an expert on the CIA, notes that the bill as revised by White House officials does not give any real specifics. Attorney General Alberto Gonzales will assert that the only restrictions on prisoner interrogations are the ban on “severe” psychological or physical pain, “the same linguistic legerdemain that had allowed the administration to start torturing back in 2002” (see August 1, 2002). Gonzales also implies that practices such as waterboarding are not prohibited. [TomDispatch (.com), 2/8/2006]
Legal Cover - A provision of the bill inserted after negotiation with White House officials says that CIA and military officials accused of torture can claim legal protection by arguing that they were simply following the orders of their superiors, or they have a reasonable belief that they are carrying out their superiors’ wishes. McCain dropped the original provision that all military personnel must follow the stringent guidelines for interrogation laid out in the Army Field Manual; the bill now follows the Uniform Code of Military Justice, which says that anyone accused of violating interrogation rules can defend themselves if a “reasonable” person could conclude they were following a lawful order. McCain resisted pressure from the White House to include language that would afford interrogators accused of torture protection from civil or criminal lawsuits. [CNN, 12/15/2005; Associated Press, 12/15/2005]
Controversial Amendment - Perhaps even more troubling is an amendment to the bill that would essentially strip the judiciary’s ability to enforce the ban. The amendment, originally crafted by senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) and added to by Carl Levin (D-MI), denies Guantanamo detainees the right to bring legal action against US personnel who torture or abuse them—effectively denying them the fundamental legal right of habeas corpus. It also gives the Defense Department the implicit ability to consider evidence obtained through torture or inhumane treatment in assessing detainees’ status. Human Rights Watch (HRW) says that the DTA marks the first time in history that Congress would allow the use of evidence obtained through torture. HRW’s Tom Malinowski says, “With the McCain amendment, Congress has clearly said that anyone who authorizes or engages in cruel techniques like water boarding is violating the law. But the Graham-Levin amendment leaves Guantanamo detainees no legal recourse if they are, in fact, tortured or mistreated. The treatment of Guantanamo Bay detainees will be shrouded in secrecy, placing detainees at risk for future abuse.… If the McCain law demonstrates to the world that the United States really opposes torture, the Graham-Levin amendment risks telling the world the opposite.” [Human Rights Watch, 12/16/2005] Geoffrey Corn, a retired Army lieutenant colonel and Judge Advocate General lawyer, agrees. In January 2006, he will write that the “recent compromise inclusion of an ‘obedience to orders’ defense… has effectively undermined the goal Senator John McCain fought so long to achieve. Instead of sending a clear message to US forces that cruel, inhumane, or degrading treatment of detainees is never permissible, the compromise has validated President Bush’s belief that the necessities of war provide the ultimate ‘trump card’ to justify ‘whatever it takes’ in the war on terror.” [Jurist, 1/6/2006]

Entity Tags: Tom Malinowski, Lindsey Graham, US Department of Defense, Jon Kyl, Uniform Code of Military Justice, John McCain, John W. Warner, Geoffrey Corn, Alberto R. Gonzales, Bush administration (43), Alfred McCoy, Carl Levin, Detainee Treatment Act, Central Intelligence Agency, Human Rights Watch, Duncan Hunter

Timeline Tags: Torture of US Captives, Civil Liberties

Responding to the news that Khalid Shaikh Mohammed was waterboarded 183 times in a single month (see April 18, 2009), Senator John McCain (R-AZ) reiterates his opposition to waterboarding and to torture: “One is too much. Waterboarding is torture, period. I can ensure [sic] you that once enough physical pain is inflicted on someone, they will tell that interrogator whatever they think they want to hear. And most importantly, it serves as a great propaganda tool for those who recruit people to fight against us.” He adds, “The image of the United States of America throughout the world is a recruiting tool for Islamic extremists.” However, McCain says it was a “serious mistake” for the Obama administration to release the CIA torture memos (see April 16, 2009), saying, “The release of these memos helps no one, doesn’t help America’s image, does not help us address the issue.” [Think Progress, 4/20/2009]

Entity Tags: Khalid Shaikh Mohammed, Obama administration, John McCain

Timeline Tags: Torture of US Captives

Senator and former presidential candidate John McCain (R-AZ), a strong opponent of torture (see July 24, 2005 and After, October 1, 2005, November 21, 2005, December 13, 2005, December 15, 2005, and April 20, 2009), says that the US must “move on” from the Bush era of torture and not investigate the Bush administration’s torture policies. McCain refuses to support Democratic calls to impeach former Justice Department official Jay Bybee, who authored several of the torture memos (see August 1, 2002 and August 1, 2002), even as he acknowledges Bybee broke the law. McCain says: “He falls into the same category as everybody else as far as giving very bad advice and misinterpreting, fundamentally, what the United States is all about, much less things like the Geneva Conventions. Look, under President Reagan we signed an agreement against torture. We were in violation of that.” McCain says that “no one has alleged, quote, wrongdoing” on the part of Bush officials such as Bybee, saying only that they gave “bad advice” to Bush and other senior officials. [Think Progress, 4/26/2009]

Entity Tags: John McCain, Bush administration (43), Jay S. Bybee

Timeline Tags: Torture of US Captives

Ordering 

Time period


Email Updates

Receive weekly email updates summarizing what contributors have added to the History Commons database

 
Donate

Developing and maintaining this site is very labor intensive. If you find it useful, please give us a hand and donate what you can.
Donate Now

Volunteer

If you would like to help us with this effort, please contact us. We need help with programming (Java, JDO, mysql, and xml), design, networking, and publicity. If you want to contribute information to this site, click the register link at the top of the page, and start contributing.
Contact Us

Creative Commons License Except where otherwise noted, the textual content of each timeline is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike