Senator John McCain
U.S. Senator John McCain, a torture survivor from his days as a captive during the Vietnam War, says his private comments about harsh interrogation methods were misrepresented by the Bush Administration in a recently released legal document intended to justify a six-day course of sleep deprivation for one CIA detainee in November 2007.
The newly declassified memo by the Justice Department's Office of Legal Counsel mentions a secret briefing McCain and other members of Congress received sometime before Oct. 17, 2006. The memo says the lawmakers were told about six CIA interrogation techniques, including prolonged sleep deprivation.
The memo recounts McCain's reaction this way: "[S]everal Members of Congress, including the full memberships of the House and Senate Intelligence Committees and Senator McCain, were briefed by General Michael Hayden, Director of the CIA, on the six techniques that we discuss herein," writes Steven G. Bradbury, a deputy assistant attorney general in the July 20, 2007, memo, which cites a CIA summary of the discussions. "In those classified and private conversations, none of the Members expressed the view that the CIA detention and interrogation program should be stopped, or that the techniques at issue were inappropriate."
A spokeswoman for McCain said that contrary to those claims, the Arizona Republican repeatedly raised objections in private meetings, including one with Hayden, about the use of sleep deprivation as an interrogation technique. "Senator McCain clearly made the case that he was opposed to unduly coercive techniques, especially when used in combination or taken too far — including sleep deprivation," says Brooke Buchanan, a spokeswoman for McCain.
An aide to McCain said that in meetings with Hayden and others, McCain raised the story of Orson Swindle, a friend of McCain's who suffered forced sleep deprivation through stress positions as a captive of the North Vietnamese. During his last presidential campaign, McCain repeatedly spoke publicly of prolonged sleep deprivation as a form of torture.
A former senior intelligence official familiar with Hayden's discussions with Congress also told TIME that Bradbury's characterization of the discussions was incomplete — but in a different way. "Hayden didn't go to the committees seeking approval for the techniques; he was simply seeking guidance," says the official. "There was no singular view from the committees. There were people who wanted us out of the counterterrorism business, and there were people who said, 'Why aren't we still doing waterboarding?'"
The official says Hayden had one short meeting with McCain, in the Senate cloakroom, but doesn't recall the details of that discussion. But, the official adds, "Hayden has never claimed that the committees told him, "You're good to go, no problem." A CIA spokesperson declined to comment on the dispute.
According to a declassified narrative released by the Senate Intelligence Committee, the CIA briefed committee members about its interrogation program on Sept. 6, 2006. In the weeks that followed, according to a person familiar with the matter, California Democrat Diane Feinstein, a member of the committee, raised concerns with the CIA about the use of enhanced interrogation techniques. Several other members of the committee spoke publicly about their concerns over the techniques in the months that preceded Bradbury's 2007 memo.
The contention by McCain and others that private discussions were misrepresented are important because they call into question the legal conclusions that allowed harsh interrogation in late 2007. The CIA account of the congressional briefing was used by Bradbury to argue that prolonged sleep deprivation did not "shock the conscience," a legal standard based on the Constitution's Fifth Amendment right to due process. While "not conclusive on the Constitutional question," Bradbury argued that the lack of objections from members of Congress following the classified briefing contributed to providing "a relevant measure of contemporary standards." If Bradbury had concluded that extended sleep deprivation did "shock the conscience," the technique would have been illegal under the Detainee Treatment Act of 2005, which applied constitutional standards to the treatment of CIA detainees.