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Anti-Torture Amendment and White House response

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SEC. 10001. None of the funds made available in this Act may be used in contravention of the following laws enacted or regulations promulgated to implement the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (done at New York on December 10, 1984):
(1) Section 2340A of title 18, United States Code.

(2) Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (division G of Public Law 105-277; 112 Stat. 2681-822; 8 U.S.C. 1231 note) and any regulations prescribed thereto, including regulations under part 208 of title 8, Code of Federal Regulations, and part 95 of title 22, Code of Federal Regulations.

Mr. MARKEY. Mr. Chairman, the amendment I am offering deals with the issue of the outsourcing of torture. It is identical to amendments that this House has previously approved to the emergency supplemental appropriations bill in March and the State-Justice appropriations last week. Very simply, it states that none of the funds appropriated in this bill may be spent in contravention of laws and regulations adopted to implement the convention against torture.

The convention against torture is a treaty signed by the United States under President Ronald Reagan, and it was ratified by the Senate in 1994. It prohibits any use of torture or other cruel or degrading treatment. It also prohibits the outsourcing of torture by sending people to any country where there is a reasonable likelihood that they will face torture.

My amendment simply ratifies America’s commitment to the convention. It does not change current law. It is a simple funding restriction aimed at underscoring to all of the defense and intelligence agencies funded under this bill that they need to ensure that all of their activities are fully compliant with America’s treaty obligations and with the requirements of United States law and regulation.

It is wrong for the United States to capture prisoners, put them on Gulfstreams and fly them to Syria or Uzbekistan with the assurance given by those countries which we know are human rights abusers that they will not torture prisoners. If the United States captures a prisoner, we should keep that prisoner in our possession, or send him to a country which has the same values which we have. But it would be wrong to continue to engage in a process where we send these prisoners to Syria, for example, which administers electrical shocks, pulling out of fingernails, forcing prisoners to engage in inhumane acts.

Full text here.

Now, here are excerpts from the UN act:

… 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The Senate also approved it with pretty much full Republican support. Bill Frist said, “This amendment strives to establish uniform standards for the interrogation of prisoners and detainees as a means for helping ensure our service men and women are well trained, well briefed, knowledgeable of their legal, professional and moral duties and obligations.” (Link)

Now, the Whitehouse response, from here:

MR. McCLELLAN: Well, there are already laws on the books, and so I think part of this, if you go back and look at the statement of administration policy that we put out, it would be unnecessary and duplicative. And it would limit the President’s ability as Commander-in-Chief to effectively carry out the war on terrorism.

So if there are already laws on the books that do that, then why does it limit the Presiden’ts powers?

Q And will the President veto Senator McCain’s legislation?

MR. McCLELLAN: Well, we put out the statement of administration policy, which stated our concerns about that and stated — let me specifically refer you to it — our views when it came to if those amendments were part of the final legislation. It said, if it’s presented, then there would be a recommendation of a veto, I believe.

Well, that’s just wonderful. And then later in the press conference

MR. McCLELLAN: Well, let’s go back to after September 11th. …

This administration seems more and more divorced from reality. Staying the course, staying the course, whatever. Bush doesn’t need to be making any more broad statements about the ‘Global War on Terror.’ He needs to be making specific statements about people shooting each other in Iraq.

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  • Dr. Kurt

    Scott McClellan will make an excellent bartender at the 2nd-Best Little Whorehouse in Texas (which will ultimately go bankrupt due to its owner’s, Big W’s, poor administrative and business skills). I can picture Scotty as he kindly assuages the married patrons’ guilt with strong booze and lame rationalizations… “Really, it’s OK… you aren’t really cheating on your wife, see…”
    McCain for president! Impeach Bush!

  • Michael J. West

    You noted that it passed with full Republican support. Is it enough support to override a veto?

  • Wisco

    It passed 90-9. It’s veto-proof unless 22 senators change their minds.

  • Sam Jack

    Yes, it’ll survive a veto, and if Bush lodges one, it’s bad news for him. It’ll show the continuing break-down of relations between the White House and legislature.

    Perhaps the legislature has finally caught on that they spent a year or two as a rubber-stamp for Bush and the rest of the executives, and have decided to reclaim some independent power.

  • Dave Nalle

    There’s a major error in this article. The amendment which was voted on 90-9 by the Senate is NOT the Markey Act (H.R. 654) which was introduced in the hoiuse in February and is pretty much a dead issue at this point. It is one of several democrat sponsored anti-extraordinary rendition amendments and bills which went nowhere earlier this year. The Senate equivalent of that act was the Leahy Convention Against Toruture Act, which died in committee in March.

    What the Senate voted on and passed is the McCain-Graham amendment (SA 1977), the full text of which is at Andrew Sullivan.

    That said, and having read it over, it’s pretty straightforward. It just reiterates the principle that the UCMJ and Army Field Manual on Intelligence rules are supposed to apply to prisoners. Perfectly reasonable thing to put out clearly once and for all.

    However, it clearly does NOT prohibit extraordinary rendition. If a foreign power has a claim on a prisoner there’s nothing in this amendment to say we can’t hand them over and then take in return any intelligence gathered by that foreign power by whatever means they use to obtain it – which is what the various democrat sponsored bills opposed. It specifically goes out of its way to make clear that the prohibition against torture only applies to those in the physical custody and jurisdiction of the US.

    So it’s an amendment agaisnt Abu Ghraib type activities, which were already in violation of US law anyway, but not against sending prisoners to Syria or other countries for torture, which is what the Markey amendment targeted.

    And yes, Bush is not going to veto the McCain-Graham amendment. There’s nothing in it that doesn’t match already stated administration policy.


  • Sam Jack

    “The Senate also approved it with pretty much full Republican support.”

    I think this makes it clear that what I quoted was the House amendment, and I don’t believe there were any substantial changes in the version that the Senate passed.

  • Sam Jack

    On second thought, you’re right, there’s the extraordinary rendition thing.

    I disagree with that, I think that it is just as morally wrong for the United States to be shipping prisoners off to torture places as it is to torture them themselves. Anyway, my mistake, but the point of my article was to show that this is a reasonable measure and that the Bush response as stated by McClellan has been less than ideal.

  • Dave Nalle

    With the exraordinary rendition business taken out, and as the amendment currently reads, I can’t imagine why the white house would object or even how they COULD object. It’s exactly the policy they’ve previously stated they support, and it’s based directly on wording already in military regulations. Bush pretty much has to sign it.


  • Lio

    Dave… If Bush ‘has to’ sign it and already supports what’s in it…why is Scott McClellan saying it would harm Bush’s ability to carry out the War of Terror, and why is he saying Bush will veto it?

    How can anyone defend him on his?

  • Dave Nalle

    I don’t know why McClellan is saying it. It seems idiotic. Bush has yet to veto a single bill in 5 years. It seems insane to veto one which he’s previously said he essentially agrees with.

    Of course, I guess Bush could not actually support it, but the stated policy of his administration is not inconsistent with it.