Why the New U.S. Torture Ban May Lack Teeth

By Timothy J. Burger

Amid much fanfare, President Bush reversed course and agreed to back an amendment--sponsored by Arizona Senator John McCain and, until recently, vehemently opposed by the White House--that would ban the torture of prisoners held by the U.S. anywhere in the world. But CIA spooks who interrogate terrorist suspects, such as alleged Sept. 11 plotter Khalid Sheikh Mohammed, may not need to don kid gloves just yet. U.S. officials conceded to TIME that the White House and McCain, a former Navy POW in Vietnam, made certain the amendment imposes no new penalties for any CIA operatives who violate the ban. "The McCain legislation does not create any new criminal liabilities," Bush's National Security Adviser, Stephen Hadley, said last week, characterizing it instead as "a very important statement of policy." A McCain aide agreed with that interpretation.

At most, the measure may give the Justice Department new, if murky, grounds to enforce the long-standing ban on torture that some had argued applied only on U.S. soil. But, Hadley suggested, McCain's amendment to the Pentagon policy bill may end up making it more difficult to prosecute interrogators if they employ techniques green-lighted by government lawyers and thus can use "good-faith reliance on the advice of counsel" as a defense.

Former CIA general counsel Jeffrey Smith, a key torture-ban advocate, said it would be "deeply distressing" if the amendment is interpreted as toothless. Another sign that the U.S. is sending mixed messages on torture: a provision in the bill would allow military panels to assess information obtained through "coercion" when considering whether to continue holding an enemy combatant.