November 7, 2005

The Honorable C.W. Bill Young

Chairman

House Appropriations Committee

Subcommittee on Defense

H-149 U.S. Capitol

Washington, D.C.   20515

Dear Chairman Young:

            On October 5th, 90 Members of the U.S. Senate voted to pass Senate Amendment 1977 to the Defense Appropriations bill, H.R. 2863.  Introduced by Senators John McCain and Lindsey Graham, that amendment:

• Mandates that the interrogation of detainees held by the Department of Defense or in a Department of Defense facility will be conducted in accordance with the methods specified by the U.S. Army Field Manual on Intelligence Interrogations; and
• Prohibits torture as well as cruel, inhuman or degrading treatment or punishment of any individual under the custody or control of the U.S. Government.

            This amendment would accomplish several goals.

            First, it underscores the commitment of the United States to ensure that intelligence gathered by the Armed Services is obtained through professional and humane methods -- methods that have been demonstrated to produce reliable and actionable information.  In fact, military prosecutors seeking to hold individuals accountable for detainee abuse have argued that military personnel should have been aware of the methods codified in the Army Field Manual, and should have used these standards to guide their treatment of detainees.  Similarly, in the August 2004 report on the root causes of detainee abuse, former Secretary of Defense James Schlesinger concluded “that the existence of confusing and inconsistent interrogation technique policies contributed to the belief that additional interrogation techniques were condoned.”

            Guidelines for handling detainees in the custody of the military were first published in 1952 and have been revised under various titles several times since then, most recently in 1992.  The Department of Defense is preparing a new version of the Army Field Manual on Intelligence Interrogations, making Congressional support for this effort both timely and appropriate in light of the documented value of this tool. 

More than two dozen retired military leaders have written an open letter in support of the McCain-Graham amendment.  The letter, signed by General Joseph Hoar, USMC (Ret.), General Donn A. Starry, USA (Ret.), Lieutenant General Ron Adams, USA (Ret.), and Lieutenant General Robert G. Gard, Jr., USA (Ret.) among others, said in pertinent part:

The Manual applies the wisdom and experience gained by military interrogators in conflicts against both regular and irregular foes. It authorizes techniques that have proven effective in extracting life-saving information from the most hardened enemy prisoners. It also recognizes that torture and cruel treatment are ineffective methods, because they induce prisoners to say what their interrogators want to hear, even if it is not true, while bringing discredit upon the United States.  . . . The United States should have one standard for interrogating enemy prisoners that is effective, lawful, and humane. Fortunately, America already has the gold standard in the Army Field Manual.  Had the Manual been followed across the board, we would have been spared the pain of the prisoner abuse scandal. It should be followed consistently from now on. And when agencies other than DOD detain and interrogate prisoners, there should be no legal loopholes permitting cruel or degrading treatment.

            Second, P.L. 108-375, signed into law by the President on October 28, 2004, establishes that “It is the policy of the United States to . . . ensure that no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States.”  Although this policy seems straight forward enough, there continues to be an on-going debate about the precise legal parameters of the various national and international laws that relate to this subject.  While there is an understandable need for lawyers to consider these technical issues, this debate has contributed to an impression that the United States is looking for legal loopholes to justify the unjustifiable.  This part of Senate Amendment 1977 should stand as a reaffirmation of our steadfast commitment against torture and inhuman treatment, as well as plug any existing gaps in the legal norms that apply, once and for all.

            Finally, the U.S. Constitution (Article I, Sec. 8) specifies that Congress has the authority to “make Rules concerning Captures on Land and Water.”  Congress should fulfill this Constitutional obligation now.  Accordingly, we urge you to include this amendment in the final version of the Defense Appropriations bill. 

                                                                        Sincerely,

                                                                        Christopher H. Smith