Who They Are: The double standard that underlies our torture policies.

By David Cole, SLATE Posted Friday, Nov. 11, 2005, at 12:32 PM ET

"It's not about who they are. It's about who we are."

So said Sen. John McCain, in defending his amendment to a defense appropriations bill that would bar U.S. officials from inflicting "cruel, inhuman, and degrading treatment" on detainees in the war on terror. But while Sen. McCain is surely right that how we treat those in our custody ultimately reflects back on us, this debate is also very much about who "they" are. That's because the Bush administration's justification for employing "cruel, inhuman, and degrading treatment" against certain individuals expressly turns on the fact that these individuals are foreign nationals held abroad. The coercive-interrogation policy is predicated on a double standard: According to the administration, we can do it to "them" because "they" are different from "us."

On this theory, what would indisputably be illegal if done on U.S. soil, or if done to a U.S. citizen anywhere in the world, becomes lawful when inflicted on foreign nationals held abroad. It is this theory that drove the administration to warehouse hundreds of detainees at Guantanamo Bay, Cuba, under our control but technically beyond our borders. It is this theory that drove the administration to open a network of CIA-controlled secret prisons—dubbed "black sites"—in undisclosed locations around the world. Application of the theory has already resulted in multiple homicides in the course of interrogations, one of which is recounted in gruesome detail by Jane Mayer in the Nov. 14 issue of The New Yorker.


And just when Congress appeared to be on the verge of doing something about it, Sen. Lindsey Graham, one of the principal co-sponsors of the McCain Amendment, convinced the Senate to undercut the amendment by making it unenforceable—at least for the hundreds of prisoners held at Guantanamo Bay, Cuba. On Thursday night, the Senate approved Graham's proposal, which would selectively suspend the writ of habeas corpus for foreign nationals held at Guantanamo, denying them any access to a court for violations of constitutional or international law—even if they are being subjected to precisely the cruel, inhuman, and degrading treatment that the McCain Amendment prohibits. Graham's amendment is predicated on the same double standard as the Bush administration's interpretation of the Torture Convention—namely, that it is somehow permissible to do to foreign nationals what would be patently unacceptable if done to citizens.

This double standard is deeply flawed. Legal protections for fundamental rights of those we have locked up should not vary depending on the passport they hold. And this flaw raises a serious question not only about administration policy in the war on terror, but also about American constitutional doctrine.

The administration's justification for treating foreign nationals held abroad in the war on terror differently from those held here first surfaced with respect to the prisoners held at Guantanamo. When lawyers challenged the legality of those detentions, the administration responded that the Constitution does not extend to foreign nationals outside our borders, and that therefore the Guantanamo detainees have no constitutional rights. That issue is now being litigated in the courts—although not for long, if Graham's amendment becomes law.

Then, during Attorney General Alberto Gonzales' confirmation hearings, the administration disclosed that, in its view, not only does the Constitution not apply to foreigners held abroad, but a key part of the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment doesn't either. That treaty, signed by virtually every country in the world, and signed and ratified by the United States in 1994, absolutely prohibits such conduct, without exception, even in a state of war.

After 9/11, however, the Bush administration took the view that the prohibition on "cruel, inhuman, and degrading treatment" simply does not apply to foreign detainees held outside the United States. It pointed to the fact that when Congress ratified the treaty, it stated its understanding that "cruel, inhuman, and degrading treatment" comprised conduct that would violate the United States Constitution—whose Fifth Amendment prohibits any coercion that "shocks the conscience" in interrogations. Claiming that the U.S. Constitution does not extend to foreigners overseas, the administration reasoned that the treaty prohibition on "cruel, inhuman, and degrading treatment" is similarly limited.

This legal sleight of hand allows the president to insist repeatedly that he does not condone torture and acts only in accordance with the law, while simultaneously dispatching the vice president to Congress to preserve the loophole that allows the infliction of cruel, inhuman, and degrading treatment on foreign suspects abroad. That loophole is the legal underpinning of the CIA's reported practice of "disappearing" foreign suspects into secret "black sites" and then using interrogation tactics against them that would unquestionably be forbidden if employed at the agency's Langley, Va., headquarters. The CIA's approved tactics have reportedly included water-boarding—in which the suspect is made to think he is drowning to convince him to talk—mock burials, and threats to send individuals to countries with a known track record for even more brutal forms of torture.

The administration's treaty interpretation makes no sense. The Torture Convention is predicated on the principle that the conduct it prohibits is fundamentally incompatible with human dignity—and all human beings have equal dignity, regardless of their nationality, and regardless of where they are held. There is no evidence that Congress sought to limit the Torture Convention prohibition to conduct within our borders. Abraham Sofaer, who submitted the treaty to Congress on behalf of the first Bush administration, has written to Congress stating that the current administration's position is inconsistent with the original understanding of the convention and improperly turns an effort by Congress to give substantive definition to the terms "cruel, inhuman, and degrading" into a geographical loophole that frees U.S. officials to commit actions just short of torture when acting abroad.

Sen. Graham's proposal to cut off judicial review for foreign nationals held at Guantanamo exploits a similar double standard. By its terms, it applies only to foreign nationals—denying them habeas review that is preserved for citizens. There is no basis for selectively denying judicial review to foreign nationals—if anything, they need such protection even more than citizens, since, unlike citizens, they are unlikely to find any protection through the political process.

These efforts to exploit the vulnerabilities of foreign nationals raise even more fundamental questions about the proper scope of our constitutional obligations. If a particular tactic—say, water-boarding—is unconstitutional because it shocks the conscience when used against a citizen within the United States, why should the result be any different when U.S. officials employ the same tactic against a foreign national overseas?

Distinctions based on nationality and location have historical roots, but those roots are of doubtful validity today. For example, the Supreme Court's failure to treat freed slaves as "citizens" was the basis for its infamous 1857 ruling against Dred Scott. But Congress rejected the rationale of the Dred Scott case in the constitutional amendments adopted after the Civil War, guaranteeing equal protection and due process to all "persons."

When the Constitution was initially adopted, there were also strong distinctions between domestic and international law and jurisdiction—so much so that there was a question whether even U.S. citizens would be protected by the Constitution overseas. Indeed, in 1891, Supreme Court Justice Stephen J. Field wrote that "the Constitution can have no operation in another country."

But while such territorial distinctions might have made some sense in the 18th century, they make little sense today and have for the most part been abandoned. We routinely extend our laws abroad, prosecuting individuals for conduct overseas if it has any effect on U.S. citizens or property. Since the 1950s, the Supreme Court has held that the Bill of Rights is not limited by our borders and protects U.S. citizens from their own government wherever in the world they may be. Shouldn't the same principle apply to foreign nationals—at least in cases where U.S. officials have exercised coercive authority over them? The rights not to be locked up arbitrarily or to be protected from treatment that shocks the conscience are human rights, not privileges of citizenship. We should honor these rights wherever we are acting and on whomever we are acting.

Hermann Cohen, a 19th-century Jewish philosopher, once wrote, in an exegesis on the Bible, "The alien was to be protected not because he was a member of one's family, clan, or religious community, but because he was a human being. In the alien, therefore, man discovered the idea of humanity." We are in danger of losing that idea.

David Cole, a professor at Georgetown University Law Center, is author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism.