Executive Intelligence Review
This article appears in the October 14, 2005 issue of Executive Intelligence Review.

Senate Defies Cheney,
Passes Anti-Torture Measure

by Edward Spannaus

In an overwhelming—and thoroughly bipartisan—rebuff of Dick Cheney and the White House, 90 U.S. Senators, including 46 Republicans, voted to reiterate the U.S. ban on torture, and to establish uniform standards for the treatment of prisoners in the war on terrorism. In adopting the anti-torture amendment on Oct. 5, the Senate defied a threat of a Presidential veto which had been delivered personally by Vice President Cheney, who had claimed that any assertion of Congressional authority would "interfere" with the President's conduct of the war on terror.

This, despite the fact that the United States Constitution, in Article I, Section 8, clearly confers upon Congress the authority, and the obligation, to "make rules concerning Captures on Land and Water."

The White House veto threat, delivered personally by Dick Cheney in July, was repeated again prior to the Senate vote. According to the New York Times, the White House tried to pressure sympathetic Senate Republicans to work against the "McCain amendment," so named for its primary sponsor, former POW Sen. John McCain (R-Ariz.). But whereas in July, under pressure from Cheney, Senate Majority Leader Bill Frist (R-Tenn.) had pulled the Defense Authorization bill from the Senate floor in order to block the amendments, this time, Armed Services Committee chairman Sen. John Warner (R-Va.) succeeded in obtaining Frist's backing for the measure.

The McCain amendment contains two provisions. One requires all U.S. military personnel to abide by the Army's Field Manual on Interrogations, and the other reiterates the U.S. ban on "cruel, inhumane, and degrading treatment" (the language of the Geneva Conventions), by any U.S. agency.

'Rooted in History'

As has been pointed out throughout the whole torture controversy, especially by military writers and witnesses, the United States military has had a long and proud tradition of humane treatment of prisoners, which has been sullied by the policies promulgated by civilians in the White House and the Pentagon in this Administration.

This came up repeatedly during the recent debate on the McCain amendment. During the Oct. 5 floor debate, Sen. Richard Durbin (D-Ill.), stated:

"The prohibition on torture and other cruel treatment is deeply rooted in the history of America.... These principles have even guided us during the times of great national testing. During the Civil War, President Abraham Lincoln asked Francis Lieber, a military law expert, to create a set of rules to govern the conduct of U.S. soldiers in the Civil War. The result was the Lieber Code. It prohibited torture and other cruel treatment of captured enemy forces. It really was the foundation for the Geneva Conventions." (See Documentation.)

Powell Intervention Crucial

A letter from former Secretary of State, and former Chairman of the Joint Chiefs of Staff, Colin Powell, was read on the Senate floor by McCain, in which Powell noted that the Senate has a constitutional obligation to regulate the treatment of prisoners captured in war. "I also believe the world will note that America is making a clear statement with respect to the expected future behavior of our soldiers," Powell said. "Such a reaction will help deal with the terrible public diplomacy crisis created by Abu Ghraib."

In December of 2001, through January 2002, Powell had waged a bitter fight against the forces in the Administration, centered in Vice President Cheney's office, who were determined to scrap the Geneva Conventions and give the Administration a free hand to abuse and torture prisoners.

In his letter, Powell also aligned himself with 28 other retired senior military officers who signed a letter to McCain supporting his amendment. The military signers include 25 retired flag officers, such as former CentCom Commander Gen. Joseph Hoar, and former Chairman of the Joint Chiefs of Staff Gen. John Shalikashvili; the three other signers are former Vietnam prisoners of war. (See Documentation.)

That 46 Republican Senators voted for the McCain amendment, far exceeded the expectations of the initial supporters of the provision. In the end, there were only nine who could be mustered to oppose the measure. Dubbed the "Torture Nine" by some, these were Stevens (Ak.), Sessions (Ala.), Allard (Colo.), Bond (Mo.), Coburn (Okla.), Cochran (Miss.), Cornyn (Tex.), Inhofe (Okla.), and Roberts (Kan.).

New Torture Disclosures

The latest revelations on prisoner abuse and torture, which figured prominently in the Senate debate, came from a U.S. Army Captain in the 82nd Airborne Division, Capt. Ian Fishback (a West Point graduate), and from two Army sergeants.

Their accounts first came to light in a Human Rights Watch report made public on Sept. 23. That report, based on extensive interviews of Fishback and the sergeants, shows that the abuse and torture of prisoners captured in Afghanistan and Iraq was widespread, and was carried out in the belief that this was U.S. policy coming from the top levels of the Bush Administration. The abuse of prisoners at Forward Operating Base Mercury, near Fallujah, which is described in the interviews, was very similar to what had gone on at nearby Abu Ghraib, even including photographs. "They [the soldiers at Abu Ghraib] were getting in trouble for the same things we were told to do, so we destroyed the pictures," one soldier had told the captain.

Fishback describes one category of beatings and abuse of prisoners which was just done for the amusement of soldiers, and another category of abuse and torture which was ordered by Military Intelligence interrogators in order to "soften up" prisoners for interrogation. Significantly, although he doesn't note this, this pattern of abuses began about one month after former Guantanamo commander Gen. Geoffrey Miller was sent to Iraq in late August and early September of 2003 by Defense Secretary Donald Rumsfeld, and by Rumsfeld's Undersecretary for Intelligence, Stephen Cambone, for the express purpose to "Gitmo-ize" prisoner operations in Iraq.

Captain Fishback told Human Rights Watch that he knew that he was witnessing violations of the Geneva Conventions, "but I was under the impression that that was U.S. policy at the time." But after the Abu Ghraib scandal broke in the Spring of 2004, and Defense Secretary Rumsfeld testified before the Congress that the U.S. followed the Geneva Conventions in Iraq, and followed the "spirit" of the Geneva Conventions in Afghanistan, Fishback began seeking clarification, according to a letter he later sent to Senators Warner and McCain.

Fishback went up his chain of command, and was told to keep quiet and not to jeopardize his career. It was only after he wrote to Warner and McCain that the Army opened an investigation, and then, according to interviews Fishback made to the press on Sept. 27, the investigation seemed to be targetting those who came forward to expose prisoner abuse, rather than looking up the chain of command to those who authorized it.

"I'm convinced this is going in a direction that's not consistent with why we came forward," Captain Fishback told the New York Times. "We came forward because of the larger issue that prisoner abuse is systemic in the Army. I'm concerned this will take a new twist, and they'll try to scapegoat some of the younger soldiers. This is a leadership problem."

It has been reported that Fishback is being subjected to continuous threats from the Pentagon leadership and some fellow officers—including accusations that he is siding with the enemy and working for their cause—and that he could be subjected to charges.

A number of Democratic Senators, as well as Republican McCain, quoted from the letter to McCain from Fishback during the floor debate. But shamefully, the neo-confederate Sen. Jeff Sessions (R-Ala.), mocked and ridiculed Fishback's account. McCain then took to the floor to defend Fishback and to denounce Sessions' attacks on him. "Captain Fishback is a noble, brave young American," McCain said. "He does not deserve to be disparaged on the Senate floor by any Senator, and the Senator from Alabama owes him an abject and deep apology."

The next battle will be in the House-Senate conference committee, since the House Defense Appropriations bill does not include the anti-torture amendments. But, the highly respected senior Democrat on the House Appropriations Defense Subcommittee, Rep. John Murtha (D-Pa.), has announced his support of the McCain amendment, and with the demise of House Majority Leader Tom DeLay (R-Tex.), prospects look much brighter than a few weeks ago for passage.

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