January 13, 2006- Close the Next Torture Loophole

January 13, 2006 

Dear Colleague, 

Senator McCain’s amendment to end the cruel, inhumane and degrading treatment of detainees should have a very beneficial direct effect on the process of interrogation, but it may also make worse an indirect effect that requires renewed attention.  As President Bush made clear in his signing statement for the defense bill, the Administration appears willing to resort to abusive interrogation techniques despite the McCain amendment’s restrictions.  But to the extent that the McCain amendment is a hindrance to the use of torture by the United States, the Administration may now be more likely to use “extraordinary renditions” – where the CIA seizes or kidnaps suspects and takes them to countries like Syria or Uzbekistan for interrogation, knowing that these countries are on the State Department’s list of countries known to use torture.

I draw your attention to the attached article, which quotes a CIA agent involved in the extraordinary rendition program as saying “It’s very convenient,… It’s finding someone else to do your dirty work.” 

I have introduced H.R. 952, the “Torture Outsourcing Prevention Act,” which will stop the practice of extraordinary rendition to countries that torture and sharply restrict the practice of obtaining diplomatic assurances used to facilitate such renditions.  Adoption of this legislation would make it clear to the world that the U.S. does not practice torture, and we do not outsource our dirty work to other countries. If you would like to join myself and 64 others by cosponsoring this legislation, please contact Nicole Gasparini (x52836) from my office.


                                                            Edward J. Markey

Current Cosponsors: Neil Abercrombie, Thomas H. Allen, Tammy Baldwin, Earl Blumenauer, Sherrod Brown, Michael E. Capuano, John Conyers, Jr., Elijah E. Cummings, Danny K. Davis, Susan A. Davis, William D. Delahunt, Rosa L. DeLauro, Lloyd Doggett, Sam Farr, Bob Filner, Barney Frank, Raul M. Grijalva, Luis V. Gutierrez, Maurice D. Hinchey, Rush D. Holt, Michael M. Honda,  Jesse L. Jackson, Jr., Sheila Jackson-Lee, Marcy Kaptur, Dennis J. Kucinich, Tom Lantos, Barbara Lee, Sander M. Levin, John Lewis, Stephen F. Lynch, Carolyn B. Maloney, Betty McCollum, Jim McDermott, James P. McGovern, Michael R. McNulty, Martin T. Meehan, Michael H. Michaud, Juanita Millender-McDonald, George Miller, Alan B. Mollohan, James P. Moran, Jerrold Nadler, John W. Olver, Major R. Owens, Frank Pallone, Jr., Ed Pastor, Donald M. Payne, David E. Price, Martin Olav Sabo, Bernard Sanders, Janice D. Schakowsky, Jose E. Serrano, Louise McIntosh Slaughter, Hilda L. Solis, Fortney Pete Stark, John F. Tierney, Edolphus Towns, Mark Udall, Chris Van Hollen, Maxine Waters, Diane E. Watson, Henry A. Waxman, Robert Wexler, Lynn C. Woolsey.

McCain Is Not Enough
Eric Umansky
January 09, 2006

 Eric Umanksy writes the Today's Papers section for  Slate Magazine . He has written frequently on detainee issues for Slate, the Los Angeles Times, and others.

When the McCain anti-torture amendment passed last month, it was, rightly, celebrated for finally imposing tighter restrictions on the treatment of detainees. But as the victory recedes in memory, the combined effect of McCain’s measure and an amendment that passed with it should become clear: The U.S. now has more incentive to ship Al Qaeda suspects abroad to be tortured.

It’s not that McCain’s amendment is a bad law. It’s that it isn’t enough.

McCain’s measure states that U.S. personnel can’t engage in cruel, inhuman or degrading punishment, anywhere. There is still room for creative interpretations. (What exactly constitutes cruel, inhuman and degrading?) Still, the amendment may give CIA agents and other interrogators pause before engaging in things like waterboarding, a kind of mock drowning.

Then there was the other detainee-related amendment that passed along with McCain’s. Sponsored by Sens. Lindsey Graham, R-S.C., and Carl Levin, D-Mich., it restricts detainees’ access to courts and states that military tribunals can use testimony “obtained as a result of coercion.”
Consider those two amendments together: McCain’s amendment raises the costs for U.S. personnel who engage in anything approaching torture, while Graham’s amendment essentially invites testimony gained through torture. The upshot is an incentive to ship tight-lipped suspects off to spend some time in foreign jails where special treatment could be given to get a prisoner talking.

The White House, of course, insists it never has nor ever will send detainees abroad to be tortured. "The United States,” as Secretary of State Condoleezza Rice has put it, “does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture."

Whatever legal pirouette Rice might be performing there, the evidence suggests she is on less than solid ground.

One FBI memo, uncovered by Newsweek , discussed the military planning to send a Guantanamo Bay detainee to “Jordan, Egypt, or another third country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information.” The memo described the practice as a “violation of the U.S. Torture Statute."

“It's very convenient,” one of the CIA agents who helped set up the program during the Clinton administration told "60 Minutes." “It's finding someone else to do your dirty work.”

About 100 suspects in U.S. custody have reportedly been shipped to Egypt and elsewhere. “If you want a serious interrogation, you send a prisoner to Jordan,” former CIA officer Robert Baer told a British paper. “If you want them to be tortured, you send them to Syria. If you want someone to disappear—never to see them again—you send them to Egypt.”

The rendition loophole affects more than the most commonly understood version of rendering, in which the U.S. “snatches” a suspect and sends him off to a third country.  Given the mounds of bad PR about Guantanamo Bay, the U.S. has sent no new prisoners there in a year. Instead, it’s shipped nearly 200 Guantanamo prisoners back to their home countries. Some, as in the case of British detainees, have been released. But others appear to be entering what could be called proxy prisons.

Yemeni detainees, for example, have been sent back to their home country, where they’re now being held without charges. Yemeni officials have told Amnesty International the men are being kept in custody at the U.S.’s request. And according to The Washington Post , the U.S. is planning to help fund the prisons for Yemen. Whatever the U.S.’s intention, the Yemeni prisoners have told human rights officials of beatings and torture.

Initial drafts of McCain’s detainee amendment included language restricting rendering. But the references were removed during negotiations over the summer (as was language requiring all detainees in U.S. custody to be registered with the International Red Cross).

Still, there are bills in both the House and the Senate that would curtail rendering. The nearly identical measures, one authored by Rep. Edward Markey, D-Mass., and the other by Sen. Patrick Leahy, D-Vt., would require the State Department to compile a list of countries where prisoners face torture. Detainees in U.S. custody, then, could not be shipped off to those countries.

The bills’ chances look grim. Republican leadership in both House and Senate have blocked votes from taking place. And only six senators have signed on in support of the restrictions. But one thing we’ve learned from McCain’s anti-torture victory is that a single key senator can make all the difference. Sen. McCain has reportedly promised to support the anti-rendition amendment. Let’s hope he follows through.