LESSONS ENCOUNTERED

Rostow and Rishikof
began to distance themselves from it. Congress and the administration acted
to strengthen the existing prohibitions on torture by U.S. officials. The memoranda
were withdrawn, reaffirmed in 2005, and withdrawn again. Nonetheless,
in 2005, the Attorney General reaffirmed the lawfulness of the use of harsh
interrogation techniques. Ultimately, the Supreme Court reached conclusions
contradicting those in the memoranda. The memoranda nevertheless have
continued to be part of the debate about the legality of torture. 143
Congress. During his nomination hearing for U.S. Attorney General, Michael
Mukasey commented on the memoranda, stating that “worse than a sin,
it was a mistake.” 144 Subsequent administration actions reflect such an opinion
of the memoranda. Much of the current legal framework for interrogating terrorist
detainees was established as a reaction to the memoranda. In 2005, Congress
passed the Detainee Treatment Act, commonly referred to as the Mc-
Cain Amendment, 145 which sought to enforce U.S. international obligations by
explicitly prohibiting all executive departments and agencies from subjecting
detainees under U.S. Government control to “cruel, inhuman, or degrading”
treatment, consistent with international law. 146 Additionally, the law limited
interrogation techniques only to those listed in the U.S. Army Field Manual. 147
At the same time, Senator John McCain (R-AZ) publicly announced that the
bill did not rule out harsh treatment in case of an emergency such as imminent
attack or even when faced with a hostage rescue scenario. 148
Hamdan. In June 2006, the Supreme Court held that the United States is
obligated to adhere to the prohibition on torture in Common Article 3 of the
1949 Geneva Conventions. 149 In Hamdan v. Rumsfeld, 150 the Supreme Court
held that Article 3 applied to the conflict with al Qaeda and prohibited subjecting
detainees to violence, outrages upon personal dignity, torture, and cruel
or degrading punishment. Thus, Hamdan gave notice that the Office of Legal
Counsel’s memoranda were incorrect.
A year later, President Bush issued Executive Order 13340, reinforcing existing
legal prohibitions on torture. 151 However, another controversial Office of
Legal Counsel opinion overshadowed this order. The opinion concluded that
six “enhanced interrogation techniques,” when used with specified conditions
and safeguards, could be employed by the CIA against high-value detainees
belonging to al Qaeda without violating either the McCain Amendment or
Article 3 of the Geneva Convention. 152
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