May 9, 2008

The Honorable John D. Rockefeller
United States Senate
Washington, DC 20510

The Honorable Christopher S. Bond
United States Senate
Washington, DC 20510

Dear Senators Rockefeller and Bond:

We are writing to express our strong opposition to the proposal to amend the 2009 Intelligence Authorization Act to outlaw only eight techniques specifically prohibited in the U.S. Army Field Manual FM 2-22.3 on Human Intelligence Collector Operations.  While the proposal is misleadingly presented as an effort to ban harsh interrogation techniques, its clear purpose is to authorize them. There should be no misunderstanding on this point:  the proposal reverses Congress’s recent decision to end torture.  It is not a “compromise.”

We strongly support the requirement contained in the current bill – as well as in the 2008 Intelligence Authorization Act – that all interrogations conducted by the United States comply with the Army Field Manual.  The provisions in the bill as adopted by the Intelligence Committee with bipartisan support – including the requirement that all prisoners be registered with the International Committee of the Red Cross – would do a great deal to insure that the United States detains and interrogates prisoners within the law and in a manner consistent with U.S. commitment to treat all prisoners humanely.

But the proposed language would do just the opposite.  Indeed, the proposal does not even ban all of the illegal conduct listed in the Field Manual.  The Field Manual bans all forms of “physical pain.”  It is deeply troubling that the proposed language does not.  Rather it only bans pain that is “similar” to beatings, electric shock and burns.  This language would permit interrogators to use torture techniques like “stress positions.”  It would permit interrogators to assault prisoners so long as they stop short of delivering a “beating.”  This effort to undercut even the limited Field Manual list reveals the dramatic difference between the current provision and the proposed language.  One is designed to end torture; the other appears designed to permit it.

This is particularly troubling because the eight techniques listed in the Field Manual are already illegal.  Indeed, it was Senator Warner who stated emphatically during the debate on the Military Commissions Act that:

The types of conduct described … are in the category of grave breaches of Common Article 3 of the Geneva Conventions.  These are clearly prohibited by our bill.

Because these acts are already banned under the War Crimes Act as amended by the Military Commissions Act, it represents no compromise at all to ban them yet again.

The proposed “compromise” would in fact radically narrow interrogation rules just approved by both Houses of Congress with bipartisan support.  The 2008 Intelligence Authorization Act contained the Army Field Manual provision.  There is simply no reason for Congress to reverse itself on such a critical provision only a few months after adopting it.  While President Bush vetoed the bill, in adopting this legislation the Congress unambiguously signaled to the intelligence community and to the world that it opposes abusive interrogations.  It would be extraordinarily unfortunate for the Congress to undercut its own stance on this issue.

The proposed “compromise” would eliminate critical protections contained in the Army Field Manual and create dangerous loopholes and ambiguities concerning permissible interrogation practices.  The “compromise” would eliminate the Field Manual’s “Golden Rule” provision which states that:

In attempting to determine if a contemplated approach or technique should be considered prohibited … consider [this test] before submitting the plan for approval:  If the proposed approach [or] technique were used by the enemy against one of your fellow soldiers, would you believe the soldier had been abused?

In other sections the Army Field Manual bans sensory deprivation and orders interrogators to consider the “cumulative effect” of interrogation techniques on prisoners as well as the age and health of a detainee in determining whether interrogations are humane.  These important safeguards would be lost under the “compromise.”

The proposal would leave unclear whether or not many of the reported elements of the CIA “enhanced interrogation” regime are permitted or prohibited.  It would ban waterboarding and stripping prisoners naked.  However, it would not prohibit sleep deprivation which has been denounced by Senator McCain and the Supreme Court as a brutal form of torture.  As noted above, the proposal seems designed to permit striking prisoners and “stress positions” such as the “long-time standing” technique which reportedly involved making a prisoner stand absolutely motionless for more than 40 straight hours.  It is uncertain whether the proposal would prohibit exposing prisoners to very cold temperatures if they do not lead to “hypothermia.”

Moreover, if Congress bans only these eight specific techniques it will leave the door open to the argument that other cruel, illegal techniques are permitted because they were omitted from the list.  It is simply impossible to identify every form of torture and inhumanity.  As one anonymous interrogator told the Washington Post, interrogators are “just limited by [their] imagination.”  That would be true under the “compromise” proposal.  For instance, under the proposal, it appears that the only thing that interrogators at Abu Ghraib did wrong when they put a prisoner on a box connected with fake electric wires was to use a hood instead of a blindfold.  This proposal contains nothing to address this type of conduct or other forms of “creative cruelty.” 

But the legislation already adopted by Congress as part of the 2008 Intelligence Authorization bill solves this problem.  The Army Field Manual prevents “creative cruelty” by requiring interrogators to use only the approaches that are specifically authorized in the Manual and by applying the “Golden Rule” standard. 

In conclusion, the proposed “compromise” will raise strong doubts over whether the Congress has indeed voted to end abusive CIA interrogations.  This is no compromise.  Rather it will be seen by many as a reversal of one of the most important steps the Congress has taken to bring under control practices which have severely damaged the standing of the United States in the world, endangered U.S. service members and harmed the ability of the United States to confront and defeat terrorism.

Sincerely,

Human Rights Watch
National Religious Campaign Against Torture
Physicians for Human Rights
Center for Victims of Torture
Open Society Policy Center
Center for American Progress Action Fund
American Civil Liberties Union
Human Rights First
Amnesty International USA