That media favorite, the marvelous Maverick McCain, is still pushing for his anti-torture amendment to the defense appropriations bill.
I'm glad to see that his involvement has helped highlight the issue. And his effort has been brought into dramatic relief by Dick Cheney's insistence on explicitly exempting the CIA. McCain's own experience as having endured torture during his captivity in Vietnam gives his position on this issue additional insulation from attack.
But I've always worried that there was less than meets the eye to Maverick McCain's anti-torture amendment. This news article reminded me again why: Bush Says He's Confident That He and McCain Will Reach Agreement on Interrogation Policy by David Sanger and Eric Schmitt New York Times 12/13/05.
Torture is already illegal under US law. Those involved could be prosecuted now. Very few were court-martialed or otherwise disciplined over the Abu Ghuraib revelations, and the penalties handed down tended to be light. But the very fact that such actions were taken is a reminder that this stuff is already illegal. So why do we need a new law outlawing it once again? If the administration is breaking the existing laws, why wouldn't they break that one, too.
Cheney's proposed CIA exemption is a good reason that Maverick McCain's ploy could potentially backfire from its announced purpose. If Congress now specifies a CIA exemption, that would give the administration grounds to argue that the amendment supercedes all previous law on torture. (I'm not so familiar with the various treaties and statutes to say for sure, but I'm confident that such an action would not exempt anyone from the international laws against torture which also apply under American law.)
So what kind of "agreement" might Maverick McCain and the Bush administration reach?
After a stinging defeat in the Senate in October on Mr. McCain's measure, the White House turned to Mr. Bush's national security adviser, Stephen J. Hadley, who has been negotiating narrower language that would give some legal protection to covert operatives if they were caught going beyond the murky boundaries of acceptable interrogation techniques.
Mr. McCain insists that the United States needs a clear set of rules governing interrogations - even while he readily concedes that in extremis, the president will authorize whatever techniques he thinks will work.
"You do what you have to do," Mr. McCain told Newsweek last month when asked what a president would do if such treatment was needed to extract information about coming attacks.
It sounds an awful lot like the fabled Maverick McCain is effectively accepting the radical argument that Presidential war powers effectively override the law. "You do what you have to do", says the great Maverick about torture.
The Newsweek quotation from the Maverick was from the 11/21/05 issue: The Debate Over Torture by Evan Thomas and Michael Hirsh.
The Maverick here boldly embraces the sophomoric justification for torture that is a current favorite of the pro-torture crowd:
Even McCain recognizes there could be rare instances when a president disobeys the law and orders a suspect tortured - say, if Al Qaeda had hidden a nuclear bomb in New York and a suspect involved in the plot had been captured. "You do what you have to do," McCain told NEWSWEEK. "But you take responsibility for it. Abraham Lincoln suspended habeas corpus in the Civil War, and FDR violated the Neutrality Acts before World War II."
Pat Lang did a great takedown of the sophomore nuclear-bomb argument at the No Quarter blog: Cheney and the "Tormenters" 11/07/05. (I commented on that piece in The torture excuse The Blue Voice blog 11/19/05.
But I did a double-take when I saw the Maverick's historical references. In reference to torture, he compares a president's decision to order torture to decisions by two of the most admired presidents. And it's pretty fuzzy history.
Lincoln did suspend habeas corpus in order to imprison some Confederate sympathizers in Union states - they were known as "Copperheads" - for the duration of the conflict. After the warwas over, the Supreme Court ruled he had exceeded his authority in doing so.
But there is a crucial and painfully obvious difference between that case and Bush knowingly overriding existing law, which he has already done even absent that ticking nuclear bomb. As the late Chief Justice William Rehnquist wrote in his book , Lincoln was operating without real precedents in that situation. Though the Supreme Court ruling against his action has now become an established part of American Constitutional law, that was not the case at the time he took the action. Also, Lincoln did not make the Copperhead prisioners into lab rats for torture techniques, which has apparently been the fate of many in Guantanamo.
The Roosevelt reference is even more dubious. It's well known that Roosevelt pushed the envelope on providing aid to Britain without making the United States a formal belligerent. And he declined to formally designate the conflict between China and Japan because China was more dependent on US aid than Japan, and designating it a war would have invoked a trade embargo under the law. The Neutrality Acts of 1935, 1936 and 1937 were amended in 1939 and 1941 to facilitate aid to Britain. The 1941 change was prompted by the Germans' sinking of the US merchant marine ship the Reuben James, which is now probably most remember by the song Woody Guthrie wrote about the incident ("What were their names/Tell me what were their names?/Did you have a friend on the good Reuben James?")
If Roosevelt's administration was ever found in violation of the Neutrality Acts by the courts, I'm not aware of it. (If anyone knows of such cases, please mention them in the comments.)
In that same issue of Newsweek, the Maverick himself has a column toward Torture's Terrible Toll.
His opening sentences may be a way of complementing someone before criticizing them. But even while promoting his anti-torture amendment against the administration's opposition, this is what the legendary Maverick had to say about Bush and Cheney on the issue of torture:
The debate over the treatment of enemy prisoners, like so much of the increasingly overcharged partisan debate over the war in Iraq and the global war against terrorists, has occasioned many unserious and unfair charges about the administration's intentions and motives. With all the many competing demands for their attention, President Bush and Vice President Cheney have remained admirably tenacious in their determination to prevent terrorists from inflicting another atrocity on the American people, whom they are sworn to protect. It is certainly fair to credit their administration's vigilance as a substantial part of the reason that we have not experienced another terrorist attack on American soil since September 11, 2001.
It is also quite fair to attribute the administration's position - that U.S. interrogators be allowed latitude in their treatment of enemy prisoners that might offend American values - to the president's and vice president's appropriate concern for acquiring actionable intelligence that could prevent attacks on our soldiers or our allies or on the American people. And it is quite unfair to assume some nefarious purpose informs their intentions. They bear the greatest responsibility for the security of American lives and interests. I understand and respect their motives just as I admire the seriousness and patriotism of their resolve.
Yes, the Maverick who opposes torture is apparently willing to say it was with serious and patriotic motives that the administration permitted stripping a prisoner naked and turning a dog on him to rip out chucks of his flesh, beating prisoners to death, torturing children in front of their parents, binding people in contorted positions for prolonged period to cause excruciating pain, raping women, men and even young boys - all things that have been documented in Abu Ghuraib and other locations where US officials practiced torture. Serious and patriotic motives, says the Maverick, "appropriate concern" for getting information, certainly not deserving of the "unserious and unfair charges" (which the Maverick also leaves unspecified) that critics of torture have made against them.
He proceeds to make a clear statement of some of the problems caused by torture:
Our commitment to basic humanitarian values affects—in part—the willingness of other nations to do the same. Mistreatment of enemy prisoners endangers our own troops who might someday be held captive. While some enemies, and Al Qaeda surely, will never be bound by the principle of reciprocity, we should have concern for those Americans captured by more traditional enemies, if not in this war then in the next. Until about 1970, North Vietnam ignored its obligations not to mistreat the Americans they held prisoner, claiming that we were engaged in an unlawful war against them and thus not entitled to the protections of the Geneva Conventions. But when their abuses became widely known and incited unfavorable international attention, they substantially decreased their mistreatment of us. Again, Al Qaeda will never be influenced by international sensibilities or open to moral suasion. If ever the term "sociopath" applied to anyone, it applies to them. But I doubt they will be the last enemy America will fight, and we should not undermine today our defense of international prohibitions against torture and inhumane treatment of prisoners of war that we will need to rely on in the future. ...
The mistreatment of prisoners harms us more than our enemies. I don't think I'm naive about how terrible are the wages of war, and how terrible are the things that must be done to wage it successfully. It is an awful business, and no matter how noble the cause for which it is fought, no matter how valiant their service, many veterans spend much of their subsequent lives trying to forget not only what was done to them, but some of what had to be done by them to prevail. ...
... [T]here has been considerable press attention to a tactic called "waterboarding," where a prisoner is restrained and blindfolded while an interrogator pours water on his face and into his mouth - causing the prisoner to believe he is being drowned. He isn't, of course; there is no intention to injure him physically. But if you gave people who have suffered abuse as prisoners a choice between a beating and a mock execution, many, including me, would choose a beating. The effects of most beatings heal. The memory of an execution will haunt someone for a very long time and damage his or her psyche in ways that may never heal. In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.
Yet he is still willing to praise Bush and Cheney for their serious and patriotic motives and their "approrpiate concern" in authorizing such practices. And he proceeds to use the sophomore nuclear-bomb example in his column,aswell.
It's a sad, sad commentary on what has happened to American politics in the last four years that someone is counted as a "maverick" because they oppose legalized torture.
But how serious Maverick McCain is about ending the practice by the Bush administration still remains to be seen. Let's see, for instance, what kind of deal he's willing to make with the White House over this.
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