U.S. Prisoner Policy

MARGARET WARNER:

As Secretary of State Condoleezza Rice left for Europe on Monday, a months-long debate between Congress and the administration over how to treat terror detainees was coming to a head.

SEN. JOHN McCAIN:

Subjecting prisoners to abuse leads to bad intelligence, because under torture a detainee will tell his interrogator anything to make the pain stop.

MARGARET WARNER:

The Senate voted overwhelmingly last month to defy the White House and adopt a measure by Sen. John McCain banning torture, or cruel, inhumane and degrading treatment. But during Senate-House negotiations over the issue, Vice President Cheney has been lobbying Congress to exempt CIA personnel from McCain's restrictions. Before leaving, Secretary Rice tried to allay European concerns over the same issue.

CONDOLEEZZA RICE:

The United States does not permit, tolerate or condone torture under any circumstances. The United States does not transport and has not transported detainees from one country to another for the purpose of interrogation using torture. The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured. The United States has not transported anyone and will not transport anyone to a country when we believe he will be tortured.

Where appropriate, the United States seeks assurances that transferred persons will not be tortured.

MARGARET WARNER:

Yet throughout her five-day trip in Europe, Rice faced skeptical questions from reporters and allies about U.S. interrogation practices. By Wednesday, during a stop in Ukraine, Rice offered firmer assurances that the U.S. would abide fully by the 1994 U.N. Convention Against Torture and other cruel, inhuman and degrading treatment," or CAT.

CONDOLEEZZA RICE:

As a matter of U.S. policy, the United States' obligations under the CAT, which prohibits, of course, cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.

MARGARET WARNER:

After her final stop in Brussels, some NATO officials said they had been somewhat reassured by her comments. Secretary Rice returned to Washington today.

MARGARET WARNER:

For more on the secretary's statements we go first to one of the reporters traveling with her, Glenn Kessler of the Washington Post. Glenn, welcome. Thanks for coming right off the plane to us.

GLENN KESSLER:

Glad to be with you.

MARGARET WARNER:

Let's start with her statement, Monday, because it is kind of an unusual way to begin a statement, this we don't torture statement, we don't send anyone to countries where they torture, what was behind that?

GLENN KESSLER:

Well, she had received a letter the week before from Jack Straw, the British foreign secretary, on behalf of the European Union asking for clarification on U.S. policy. And so she felt that before going off to Europe, she had to allay the fears of the allies.

MARGARET WARNER:

All right, so you all arrive in Berlin. What was the atmosphere like? Did she appear to have allayed any concerns?

GLENN KESSLER:

Well, every question she received at the press conference with the new German chancellor dealt with U.S. policy on detainees, secret prisons, the case of a German citizen who had been abducted by the CIA and sent to a brutal prison in Afghanistan. So it — and that pattern continued throughout her trip.

MARGARET WARNER:

And did she or her staff seem to feel the pressure of that?

GLENN KESSLER:

Well, it was — they knew that this was going to be a very difficult week. And they had hoped — and they knew they would have to answer questions. It became clear to them that they weren't necessarily getting the right message out there, or giving enough of a definition of what U.S. policy was. And they felt they had to make a change.

MARGARET WARNER:

So 48 hours later you arrive in Kiev, Ukraine. And we just played that clip and where she basically went beyond torture and she talked about the '94 Convention and that the U.S. wouldn't engage in — inhuman, cruel or degrading treatment. What was behind that? How did that come about?

GLENN KESSLER:

Well, we had been asking questions from the very first day trying to seek some clarification on that. And actually —

MARGARET WARNER:

Meaning the difference — because her first statement only dealt with torture, and you were trying to say would it also —

GLENN KESSLER:

Go further. Because, and in particular, did it apply overseas rather than just inside the United States because the administration has said in the past that this — these prohibitions do not apply to U.S. personnel overseas.

And when we got to the press conference, her aides indicated that she would be interested in addressing this question again, which was interesting because we had figured maybe one day without CIA prisons, we could write about the Ukraine. It didn't happen.

MARGARET WARNER:

So, and did they characterize — did they say why they wanted you to ask, someone to ask this question? Was it a shift in position in their view?

GLENN KESSLER:

They called it a clarification. And they — part of the problem that the administration has faced is if they say oh, we changed our policy, that means they're admitting or confirming that their previous policy allowed for incredibly harsh interrogations that some people would say violate international law.

So they don't want to come out and ever say hey, we changed our policy. That really puts them in a very difficult Catch-22.

MARGARET WARNER:

And so by the time you got to Brussels, what was your reading? Because we got a lot of conflicting reports, about how the Europeans felt. Did they feel reassured or mollified?

GLENN KESSLER:

Well, in Brussels she had a private dinner with 31 European foreign ministers where she spent an hour going over her views, they could ask her questions. Some of those foreign ministers went in and said they were going to have a very vigorous debate.

They all walked out and said we believe Condoleezza Rice. We accept her explanations. It's unclear if that's going to extend to the rest of the European public. But she was able to make a very personal case. And they made it clear they would like to move on.

MARGARET WARNER:

Glenn Kessler, Washington Post, thank you.

GLENN KESSLER:

You're welcome.

MARGARET WARNER:

So what is the significance of Secretary Rice's statements on detainee treatment during her trip? And do they represent a change in U.S. policy?

To explore that we're joined by Andrew McCarthy, a former assistant U.S. attorney who prosecuted terror suspects in the first World Trade Center and East Africa bombings. He is now a senior fellow at the Foundation for the Defense of Democracy, a Washington think tank. And Tom Malinowski, Washington director of Human Rights Watch. He served in the State Department and on the National Security Council staff in the Clinton administration. Welcome to you both.

Tom Malinowski, let's begin with what Secretary Rice had to say at the start of her trip when she said, essentially, the U.S. doesn't permit torture and does not transport detainees to any country that will torture them. Was that an accurate reflection of U.S. policy and practice?

TOM MALINOWSKI:

Well, I think Secretary Rice is making a sincere effort here to try to bring America back on the straight and narrow path with respect to torture. The problem is that the administration as a whole has a very fungible definition of torture and cruel treatment.

CIA Director Goss just a few days ago, for example, said that torture is in the eyes of the beholder. And we understand that the CIA has used interrogation techniques, may still be using techniques like water boarding, which is something that we learned from the glorious days of the Spanish Inquisition.

MARGARET WARNER:

And water boarding being that someone strapped to a board and lowered into the water till he feels he is drowning.

TOM MALINOWSKI:

It is simulated drowning. They cover your face with cellophane so that you sense suffocation and they pour water over your face. Again, this is one of the most notorious torture techniques.

MARGARET WARNER:

So are you saying that technically what she said was accurate but the problem in your view is that the administration defines torture so narrowly?

TOM MALINOWSKI:

That's been the problem in the past. And it remains to be seen whether her statement will actually lead to a change in policy.

MARGARET WARNER:

Andy McCarthy, let me get your view, first of all, on what she had to say when she left, both about torture and the corollary which was, and we don't transport detainees to countries that we think will torture them.

ANDREW McCARTHY:

Well, torture has a specific statutory definition. So, you know, it really is not all that relevant what this person or that person says may be in the eye of the beholder. We actually have a statutory definition. It involves the infliction of severe pain or suffering, mental or physical. That's I think a fairly straightforward definition.

And a lot of what I think has been confusion in this argument has been trying to extend torture to conduct coercive interrogation measures which don't quite meet that standard.

And obviously people at Human Rights Watch and elsewhere object to that. They would like to see the standard extended so that all coercive interrogation was impermissible. But it's simply not a fact that all coercive interrogation is torture.

And it's also not a fact that all coercive interrogation is in violation of the CAT, the United Nations Convention Against Torture.

MARGARET WARNER:

Well, let me ask you about that, about her statement in Kiev then on Wednesday when she say the U.S. under that 1994 U.N. Convention was prohibited from cruel, inhumane and degrading treatment and that it covered all U.S. personnel here or abroad. Was that an expansion in your view?

ANDREW McCARTHY:

Well, there's a difference between what's proper and what's policy. What she said, as I understood it, was that U.S. policy was that the cruel, inhumane and degrading provisions of the 1994 Treaty applied both in the domestic United States and to our personnel abroad.

Now that is a broader statement of obligation than what legally is required because when that treaty was ratified back in 1994 that was done with a specific reservation that limited the cruel, inhuman and degrading provisions to what was already the law under the U.S. Constitution.

The Supreme Court has held repeatedly that Bill of Rights provisions do not apply overseas. And specifically, with respect to the provisions that Congress cited in its reservation, those provisions do not apply overseas.

MARGARET WARNER:

So Mr. Malinowski, do you think she was going beyond, not only what the administration policy has been, but, in fact, what the U.S. is obligated to do?

TOM MALINOWSKI:

Well, the U.S. is obligated under that treaty not to engage in cruel treatment overseas. Judge Sofaer, for example, the Reagan administration official who negotiated the CAT wrote a letter to the Senate recently disagreeing with the Bush administration's very, very narrow and isolated belief that this treaty does not apply overseas.

Now I'm not sure whether — which position she embraced because her statement was so ambiguous; and I think ultimately it's going to depend on what the administration does. Are they going to continue to use techniques like water boarding, which not just, I think, are torture but the State Department constantly condemns as torture when they take place overseas?

MARGARET WARNER:

But you all have a difference of opinion here about this question of — of what the restrictions are on U.S. personnel overseas, is that right, Mr. McCarthy?

ANDREW McCARTHY:

Yes it is right. I think when Judge Sofaer was a judge, you know, he had a little bit more authority to say what the law was than he does now.

But in point of fact, the Supreme Court of the United States has held that constitutional provisions do not apply, Bill of Rights provisions do not apply overseas.

Now when Congress ratified this treaty, it said that the extent of cruel, inhuman and degrading treatment was controlled by the 5th, 8th and 14th amendments to the Constitution, like it or not, those provisions don't apply overseas.

Now I don't mean to suggest that it not a worthwhile endeavor to have a real serious conversation about what interrogation methods we would abide or should abide and which ones we shouldn't.

But I don't think that that discussion, which I think is very worth having, is helpfully controlled by very vague terms like "cruel, inhuman, and degrading treatment." I mean who really is to say what is degrading treatment?

MARGARET WARNER:

So Mr. Malinowski, if what Condoleezza Rice said in Kiev ultimately prevails inside the administration, and we obviously don't know that, what would that, should that mean for the future of the McCain amendment?

TOM MALINOWSKI:

Well, there are a couple of simple things that the administration can do to show that Condi's statement was sincere.

First of all they should embrace the McCain amendment, which makes law consistent with what Condoleezza Rice said in Kiev. It would be a very simple thing for them to do.

Second of all, they could recognize that they really no longer have a need for these secret prisons around the world because the only reason to maintain secret prisons, to hide prisoners from the International Committee for the Red Cross is to engage in techniques that we're ashamed of.

And finally, they could be absolutely clear, which they have not been, that they are ruling out techniques that have been known as torture since really the days of the Spanish Inquisition.

MARGARET WARNER:

Mr. McCarthy, what is your view on that? Let's take the first two — well, let's take the first one that, in fact the administration should now just embrace the McCain amendment, and he did say Sunday, by the way — Sen. McCain did — that he wasn't planning to compromise on the language.

ANDREW McCARTHY:

I think even Sen. McCain is not faithful to the McCain amendment, ultimately. And I say that with great respect for Sen. McCain.

But even he has said in the so-called ticking bomb scenario, that he would expect that somebody would, in fact, not follow the law and would engage in coercive interrogation. And I think it makes no sense, frankly, to make a law that we actually expect to be broken when the — when the key time comes.

So no, I think that what we really should be doing is engaging a conversation about coercive interrogation, but we should do it mindful of the fact that we are at war. Three thousand have been killed. Another WMD attack could, frankly, end up in the deaths of tens of thousands of Americans.

And to take off the board techniques of interrogation that are not torture and that may very well be giving us precious intelligence that are saving American lives, is foolish to do unless we've had a complete study of what it is we've learned, what kind of intelligence we've gotten, what methods have produced it.

MARGARET WARNER:

You have the last word on this.

TOM MALINOWSKI:

Just yesterday 30 senior, respected retired intelligence professionals — former CIA directors, former CIA interrogators wrote a letter endorsing the McCain amendment and saying that torture, cruel treatment gives us unreliable intelligence and undermines our moral authority to end the war on terror.

I think there is a consensus that we need to move forward and place the focus on the crimes of these terrorists rather than on what America has been doing wrong.

MARGARET WARNER:

All right, Tom Malinowski and Andy McCarthy, thank you both.