Congress Adopts Restriction on Treatment of Detainees

The New York Times
May 11, 2005
Congress Adopts Restriction on Treatment of Detainees
By ERIC LICHTBLAU

WASHINGTON, May 10 - Congress barred the government on Tuesday from using any money in a newly passed emergency spending bill to subject anyone in American custody to torture or "cruel, inhuman or degrading treatment" that is forbidden by the Constitution.

Proponents said the little-noticed provision, in an $82 billion bill devoted mostly to financing military operations in Iraq and Afghanistan, amounted to a significant strengthening of current policies and practices in the treatment of prisoners.

Drafted since the disclosure of abuses in Afghanistan and Iraq and at Guantánamo Bay in Cuba, it lays out a definition of illegal treatment that human rights groups say is broader than the Bush administration's current interpretation, and links the ban directly to military spending.

"This sends a clear message to our own government that certain conduct is simply unacceptable," Senator Richard J. Durbin, the Illinois Democrat who sponsored the provision, said in an interview. "And it reminds the world that what happened at the Abu Ghraib prison is not American policy and is not tolerated."


The administration, which helped defeat efforts to include antitorture restrictions in legislation last year, said it did not oppose the provision in the new military operations bill. The Senate passed that bill on Tuesday by a vote of 100 to 0, after approval by the House last week, and the administration indicated that President Bush would sign it into law.

"If the Congress wants to use the appropriation process to dictate government action, that's within their power, and the Department of Justice did not oppose it," said Kevin Madden, spokesman for the department.

Trent Duffy, a spokesman for the White House, declined to address the merits of the antitorture provision but said that the White House was aware of it and that Mr. Bush wanted to sign the bill quickly.

"The president has made clear that this administration does not condone torture," Mr. Duffy said. "That is administration policy, and that still stands."

In opposing antitorture measures last year, the White House said they were unnecessary and would provide expanded legal rights to which foreign prisoners were not entitled. One such measure would have specifically subjected American intelligence officers at the C.I.A. and elsewhere to new restrictions, with implications for the agency's overseas interrogation of senior leaders of Al Qaeda.

The provision approved Tuesday does not include any specific references to intelligence officers. Instead, it says that no money appropriated in the bill can be used "to subject any person in the custody or under the physical control of the United States to torture or cruel, inhuman or degrading treatment or punishment that is prohibited by the Constitution, laws or treaties of the United States."

Human rights advocates said it was unclear whether the prohibition would restrict the ability of the C.I.A. or other government agencies to conduct so-called renditions - that is, to send terrorism suspects to be interrogated in other countries, even those that are known to engage in abusive treatment of prisoners.

Representative Edward J. Markey, a Massachusetts Democrat who sponsored a version of the provision in the House, said that in his view the measure effectively banned renditions if military financing provided by the bill was involved. Other officials said the issue was not so clear-cut.

Elisa Massimino, the Washington director of Human Rights First, formerly the Lawyers Committee for Human Rights, said the Congressional ban served to remove an important exemption claimed by the administration in its treatment of foreign prisoners.

At hearings on his confirmation as attorney general, Alberto R. Gonzales said the administration, backed by the courts, held that foreign prisoners "enjoy no substantive rights" under the Constitution or the Convention Against Torture, a United Nations agreement.

But the measure approved Tuesday drew no distinction between American citizens and foreign prisoners in forbidding cruel, unusual or inhuman treatment that is prohibited by the 5th, 8th and 14th amendments to the Constitution.

Ms. Massimino said the exemption cited by Mr. Gonzales was "a pretty big loophole, and this measure in Congress is a step toward herding the administration back toward the rule of law."

Anthony Romero, executive director of the American Civil Liberties Union, said the passage of the antitorture provision "clearly shows that there's growing traction on this issue in Congress, when you have even Republicans willing to break ranks and raise concerns" about the treatment of prisoners.

"This," Mr. Romero said, "is a bullet the administration hasn't been able to dodge."