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CIA's Jeffrey H. Smith's oped on Torture--WashPost 11-9-05

Subject: CIA's Jeffrey H. Smith's oped on Torture--WashPost 11-9-05
** <>*Central Torture
Exempting the CIA From the McCain Amendment Sends the Wrong Signal to
Our Officers

By Jeffrey H. Smith
Wednesday, November 9, 2005; A31

Americans do not join the CIA to commit torture. Yet that could be the
result if a proposal advanced by Vice President Cheney becomes law.

When the abuses by U.S. servicemen and intelligence officers at Abu
Ghraib surfaced last year, there was understandable outrage in this
country and abroad. Internal investigations and congressional hearings
revealed several causes of the abuse. One of the most important was
confusion in the military and intelligence agencies as to what rules
governed interrogations. A root cause of the confusion was the belief at
the highest levels of the administration that the Geneva Conventions,
which had governed our conduct for 60 years, were outmoded and should
not constrain our treatment of prisoners. Regrettably, the career
lawyers in the armed forces and the State Department who have guided our
compliance with the Geneva Conventions for decades were cut out of these

In response, Sen. John McCain, himself a victim of brutal torture by the
North Vietnamese, introduced an amendment to the 2006 Defense
Appropriations Act that would, in essence, require all agencies of the
U.S. government to comply with the Geneva Conventions and international
law, which prohibit torture. Over strong administration objection,
McCain's amendment passed 90 to 9. It will soon be considered by a
conference committee with the House, which has no similar provision in
its version of the bill. Enter the vice president.

Cheney and Porter Goss, director of the CIA, have proposed a
modification of the McCain amendment that would permit the president to
exempt the CIA from its strictures. McCain wisely rejected that
proposal. So should the conferees.

If the administration's proposal passed, what would be the consequences?
Why should we adhere to the Geneva Conventions when our terrorist
enemies do not?

The answers are simple. First, we have long championed the Geneva
Conventions because we want our citizens treated humanely when they are
captured. Second, morally it is the right thing to do. If this amendment
passes, what weight will our complaints have when other governments use
their intelligence services to torture Americans?

There are also practical considerations that argue against the
administration's proposal. It would sow even further confusion in the
field, where decisions must be made by young officers who act under
enormous stress and often in fear for their lives. Those officers
demand, and we must provide, clear guidance with respect to what they
may and may not do. The CIA and the military operate cheek-by-jowl,
often in small teams far from command structures and lawyers. If those
teams operate with two sets of rules, confusion will reign and abuses
will occur.

On Monday the president weighed in, saying that "we do not torture."
Regrettably, because his administration has endorsed interrogation
techniques that border on torture (anything short of "organ failure"),
we cannot be certain of what the president means by torture. That
confusion could be eliminated by clear congressional action requiring
adherence to a single standard for the whole government, as McCain

Lawyers and policymakers in Washington who sleep between clean sheets
and get three hot meals a day can draft complex rules that make fine
distinctions between military and CIA rules for interrogation. Those
same officials ask our young officers in the field to take great risks.
Risks are necessary to protect us. And war is not bingo. But the
officers in the field are mindful that their colleagues are being
investigated and may be prosecuted for prisoner abuses. If the Cheney
proposal is adopted, what signal will it send to those officers? If the
Geneva Conventions don't apply, what are the limits on interrogation?
Will officers in the field have confidence that they will be backed up
by senior officers in Washington, or will they be prosecuted?

There may be an argument for exempting the CIA from the McCain
amendment. If so, the president and vice president should publicly make
the case. They should say why they believe treatment of prisoners
outside the Geneva Conventions would provide vital intelligence to
protect us. They should give examples of how such treatment has produced
valuable intelligence. If the choice is between the McCain amendment as
modified by Cheney and nothing, we are better off with doing nothing and
leaving the law where it is. Sooner or later this nation will come to
its senses and remember how important international law and the Geneva
Conventions are to our standing in the world and the protection of our

The Post reported on Oct. 27 that John Negroponte, director of national
intelligence, has directed intelligence agencies to "bolster the growth
of democracy" and support the rule of law in other nations. Those are
noble causes that will be embraced by all intelligence officers. But if
the vice president's proposal is adopted, the CIA will presumably be
free to bolster democracy by torturing anyone who does not embrace it
with sufficient enthusiasm. Some democracy.

/The writer is a former general counsel of the CIA./

© 2005 The Washington Post Company
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