Presidential Picks Affect Future Torture Policies

In late December 2003, Khalid El-Masri, a German citizen, was picked up while taking a bus from Serbia to Macedonia.

El-Masri alleges that he was detained for 23 days in a Macedonia motel and then told he could return home. But once he left the hotel, he says, a hood was thrown over his head, he was handcuffed, then taken to Kabul, Afghanistan where he was beaten repeatedly. After five months, he was blindfolded, handcuffed, and put on a plane back to Macedonia.

The case of Khalid El-Masri is indicative of the CIA's policy on detaining anyone they may suspect of being a terrorist. While there is no statistical evidence on how many individuals the CIA has detained, there are numerous individuals who claim that they experienced something similar to El-Masri.

In this instance, it turned out that the Khalid El-Masri, who claims he was severely beaten while detained, was guilty only of sharing a name with another Khalid El-Masri, an actual suspected terrorist.

After the allegations of El-Masri's mistreatment at the hands of the CIA became public, the American Civil Liberties Union agreed to represent him in court and sued the United States.

First in District Court, then in the Court of Appeals Fourth Circuit, the United States claimed that details of the circumstances surrounding El-Masri's detention were state secrets and could not be divulged. The Supreme Court upheld the Fourth Circuit’s decision, granted the government this state secrets exception, and dropped the suit.

In the wake of cases like this, public concern has grown, causing the 2008 presidential candidates to take a stance on the CIA's policies on suspected terrorists and torture. With CIA secret prisons known as "blacklist facilities" no longer a secret, more allegations of misconduct have been leveled against the United States. The military has been accused of using otherwise illegal torture techniques while questioning prisoners in these "facilities," the presence of which is of questionable legality.

Presidential candidate Sen. John McCain (R-Ariz.), a survivor of torture in a Vietnamese POW camp, has stressed throughout his political career that torture does not work. He has said that it is ineffective in extracting useful information from prisoners and can lead to false confessions.

The prisoners in the CIA's blacklist facilities have been culled from countries that are considered state sponsors of terrorism by the State Department. These alleged terrorists are generally foreign nationals held against their will for purposes of interrogation through a process referred to as "extraordinary rendition."

However, it seems as if the legality of extraordinary rendition itself is questionable. Gabor Rona, the international legal director at Human Rights First, said that civil liberties are violated in this process.

“There are no legal proceedings involved," he said. "No opportunity to complain, challenge or contest the allegations or to even know about the allegations."

Plus, Rona claims, if the process is tantamount to kidnapping, then it could also be a violation of U.S domestic law, because the captured individual has no opportunity to hear the charges against him or to contest them.

George Little, a spokesperson for the CIA, has defended the government's stance, claiming that such rendition is a “lawful, effective, tool that has been used over the years on a very limited scale, and is designed to take terrorists off the street." Little also said that the U.S. does not condone torture, nor transfer prisoners to countries where torture is legal.

Once a prisoner is in U.S. custody, the law is unambiguous on the torture issue. The 2005 Detainee Treatment Act and the 2006 Military Commission Act require that anyone who is under the custody of the U.S. army can only be subject to the treatment in the Army Field Manual. None of the tactics said to constitute torture, including the controversial technique of waterboarding, are in the manual.

However, only officials directly employed by the Department of Defense are required to obey these rules. The CIA and private individuals who are contracted by the U.S. government are not required abide by them. Because there are no federal laws detailing what the proper behavior of CIA agents should be, the CIA director is free to exercise his discretion in terms of what tactics he allows interrogators to use. The CIA director is also nominated by the president, and often takes cues from the commander-in-chief.

The presidential candidates’ positions on torture, therefore, determine who they might nominate for positions like the CIA director. If candidates have vague views on torture, like Sen. Hillary Clinton (D-NY), it becomes difficult to determine what kind of person they might nominate for the position. The divisive debate over what actually constitutes torture allows candidates to keep their positions vague and uncommitted.

Clinton contradicted her own statements on torture during the New Hampshire primary debate on Sept. 26, 2007. During the debate she said that it “cannot be American policy” to torture a terrorist, even in the face of an imminent plot to attack the United States.

However, The Daily News of New York reported that in October 2006, she told the paper, "If we're going to be preparing for the kind of improbable but possible eventuality, then it has to be done within the rule of law."

John Yoo, a professor of law at the University of California-Berkeley who was a contributing writer of the Patriot Act, has written a number of controversial memos narrowly defining torture. Some prominent professors, including John Cassell, a Notre Dame Law School professor, have criticized these memos as a way to avoid prosecution for committing torture.

Cassell debated Yoo on Dec. 1, 2005 in Chicago, Ill. The two strongly disagreed with one another over presidential authority and whether or not any law has the right to prevent the president from conducting acts of torture, including “crushing the testicles of [the alleged terrorist’s] child.”

The most recent debate over torture is the practice of waterboarding, a process that simulates drowning. At Michael Mukasey’s confirmation hearings for attorney general in October 2007, the issue of waterboarding was the main focus. Both Hillary Clinton and Sen. Barack Obama (D-Ill.) opposed Mukasey’s nomination on the grounds that he would not say whether he thought waterboarding was illegal. Despite their similar criticisms of Mukasey, Obama has been critical of Clinton’s remarks on torture, saying that she flip-flopped on the issue by first saying that torture would be acceptable under some circumstances, and then coming out against it entirely.

It is, however, important to note that Mukasey, who was sworn in as attorney general Nov. 14, 2007, only hesitated to describe his position on the legality of waterboarding. He did not explicitly say that he thought waterboarding was an effective tactic.

Rona said that he thinks Mukasey knows that waterboarding is torture. However, he believes Mukasey was cautious to deem it illegal in lieu of the Iraq War, since torture used during wartime constitutes a war crime under the Geneva Conventions. This means that any U.S. government official who participated in or condoned the practice of waterboarding would be subject to prosecution for war crimes.

Former New York City Mayor Rudy Giuliani, who made terrorism and national security the primary issues in his presidential campaign, is hard to pin down when it comes to his stance on using torture. At the Davenport Forum on Oct. 24, 2007, Giuliani said, "The United States should never be for torture.” However, at the same forum, Giuliani also said he was “not sure” if waterboarding constituted torture. He also said he favored “extensive interrogation tactics” and used them while he was a prosecutor. Angering and offending many human rights groups, Giuliani laughed off the claim that sleep deprivation constitutes torture, stating that he has regularly suffered from sleep deprivation while running for president.

While Giuliani is no longer running for president, his endorsement of Sen. McCain, and McCain’s acceptance of his endorsement, could compromise McCain’s resolutely anti-torture stance.

The candidates’ stances on torture are crucial because their positions will affect whom they nominate for high profile members of their Cabinet, like the CIA director. If the person they nominate condones torture, incidents like the case of Khalid El-Masri could continue.