President Bush last week dropped his administration's months-long opposition to an anti-torture provision that Senator John McCain had succeeded in including as a "rider" to the defense appropriations bill. He made a deal with McCain that added protections for CIA interrogators similar to those available to Army soldiers, which allows them a defense against charges of torture if they had a reasonable belief that they were ordered to do so and that the order was legal.
Bush now declared that the anti-torture provisions reaffirmed existing administration policy:
And we've been happy to work with [McCain] to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad.
The present tense is important, because Bush is claiming that the McCain anti-torture amendment simply reaffirms administration policy. McCain said:
This agreement basically does two things: One, puts into the Army Field Manual the specific procedures for interrogations. And two, it prohibits cruel, inhumane - or torture.
In our negotiations, there was legitimate concerns raised by the administration concerning the rights of interrogators. And taking language from the Uniform Code of Military Justice, we provide them with legal counsel and certain protections that a reasonable person might view as carrying out of orders, not to contradict the Nuremberg decision, which, of course, said that obeying orders is not a sufficient defense.
(Bush's and McCain's statements just quoted can be found at the White House Web site: President Meets with McCain & Warner, Discusses Position on Interrogation 11/15/05.
This is a significant political achievement because with this action, both Houses of Congress have indicated clearly that they believe the publicly-known aspect of current administration torture policy and practice are unsustainable and undesirable. Let's be generous in the Christmas spirit and say they believe it's immoral, as well.
However, this is scarcely a clear-cut and decisive policy victory for the anti-torture critics, as several of the writers I cite below are pointing out. And the final legislation hasn't yet been approved. So there can certainly be changes before Bush signs the legislation, although I would be surprised if the language Bush and McCain agreed upon is not included.
Jules Witcover, still by far one of the best political analysts in the business, writes that the agreement on the anti-torture legislation last week represents Another McCain victory over Bush
Tribune Media Services 12/18/05 (accessed 12/16/05). He gives a good description of the qualities that make an incident like the fight over torture politically helpful to "Maverick" McCain.
When the matter came down to its essentials, McCain recruited enough Republicans in the Senate and House to assure an overriding of any such veto if it had come to that, already having nearly all Democrats supporting his amendment.
But more than the sheer numbers was involved. McCain's special qualifications for demanding a flat prohibition on prisoner torture, having suffered it himself for five years as a prisoner of war in North Vietnam, made him a unique spokesman for his cause.
More than that, the old Navy pilot effectively made the case that his amendment not only was morally right; but it was in keeping with the accepted views on human rights for which the United States was a beacon to the world until the late unpleasantness at Abu Ghraib.
In that sense, McCain's "maverick" status is at least partly real in today's Republican Party.
Witcover reminds us that though Bush understandably tried to spin the deal as something on which he and McCain had been essentially in accord over all along, in fact Bush and Dick Cheney had fought hard against including such a provision.
It did mean a political defeat for Bush, one he arguably could have avoided with the attendent embarassment and publicity, if he had just recognized that he would likely have to accept something like this once the Senate approved it overwhelmingly. And, after all, as I've said before, if he hasn't been obeying the existing laws over torture, what makes anyone think he will obey this latest addition? In the very same week he made his deal with McCain over the torture legislation, he shocked even Republicans with a White House admission that he had authorized electronic surveillance by the National Security Agency (NSA) in violation of the legal requirement to get (secret!) warrants from the courts.
Despite McCain's accomplishment this past week, Witcover is also too good at what he does to miss how little of a "maverick" McCain actually is:
In McCain's first presidential try, he could not overcome his reputation as a maverick within his own party. But his strong support of the invasion of Iraq, and his continuing insistence that the United States must persevere there, have kept him solidly on the GOP reservation in that respect.
Despite his disagreement with certain party positions on issues like campaign finance reform, his voting record remains strongly conservative and hence he may be more acceptable to the party's right wing than in the past. And if continued control of the White House seems in jeopardy by 2008, McCain's appeal to independents and some Democrats could greatly enhance his chances.
William Fisher writes that the Torture Ban May Include a Backdoor Inter Press Service 12/16/05. You might say that his article points out two backdoors. One is the Army Field Manual that the Bush-McCain agreement establishes as the standard for interrogation can be changed. And in fact, was just changed. Fisher writes:
McCain, who was tortured as a prisoner of war during the Vietnam War, made it clear that he would not change a single word in his proposal. The House of Representatives voted 308 to 122 to endorse the measure, which is an amendment to the massive defence spending bill that funds military operations in Iraq and Afghanistan. The supportive vote in the Senate was 90 to 9.
But in the deal worked out with the president, McCain was willing to add two paragraphs to give civilian interrogators legal protections that are already afforded to military interrogators. This means that civilians would be able to defend their use of interrogation tactics by arguing in court that a "person of ordinary sense and understanding would not know the practices were unlawful".
However, experts say that if CIA or civilian personnel believe they were being directed to use an interrogation technique that was illegal, they would be obligated to disobey the order.
The new rules reportedly outlaw practices never before mentioned explicitly, such as forcing prisoners into stress positions and using police dogs. McCain hopes these will clarify unacceptable practices.
But he and other lawmakers are concerned that other additions to the Army's Field Manual on interrogations - specifically, 10 new classified pages - may open a back door to condoning practices that McCain is trying to prohibit. (my emphasis)
The other is that the same bill that contains the McCain amendment also contains the Graham-Levin amendment, which removes the ability of those imprisoned at Guantánamo to challenge their status or their treatment in American courts. The straightforward effect of that, at least for that particular location, would be to remove one of the most important mechanisms of enforcing anti-torture laws, as well as others related to their detention. Fisher writes:
But human rights advocates were already looking beyond McCain's victory to a separate proposed amendment by Sen. Lindsey O. Graham, a South Carolina Republican and a former military judge, which would eliminate certain rights of detainees held at the U.S. facility at Guantanamo Bay, Cuba.
The Graham amendment would prevent detainees from using U.S. courts to invoke the right of habeas corpus to contest their treatment, including claims that they have been tortured. It would also effectively allow the U.S. government to indefinitely detain people at Guantanamo based on evidence obtained through "coercion".
Tom Wilner, a lawyer who represents a group of Kuwaiti detainees at Guantanamo Bay, told the Washington Post that the Graham amendment would make McCain's prohibition against torture essentially unenforceable, by giving U.S. troops an incentive to engage in coercive interrogations of detainees, without fear of being held liable.
The significance of the suspension of habeas corpus is likely to be a major congressional concern as debate continues.
Peter Grier in the Christian Science Monitor (Congress moves toward clear policy against torture 12/16/05) also points out both the political significance of the anti-torture amendment and the possibly limited nature of the new legislation:
If Congress passes new legislative restrictions on cruel and degrading treatment of foreign terrorism suspects - as now appears likely - it's not clear what the practical effects on US interrogation practices might be.
US law already bans torture by American citizens. The Bush administration claims that it does not use cruel and degrading methods, even on prisoners held on foreign soil. The language of the proposed bill doesn't include any enforcement mechanisms. ...
But what's "cruel, inhuman, and degrading"? Administration lawyers have defended the practice of water-boarding, in which a detainee is made to feel as if he is drowning, as not being included in this category.
"The real issue is the definitional issue," said David Rivkin, a Washington attorney and former Justice Department official, at a Brookings Institution forum on detention policy Dec. 12.
The McCain provision addresses this only indirectly, by requiring service members to follow interrogation practices outlined in the Army Field Manual during interrogations of prisoners held in Defense Department facilities.
It's also true, though, that shining the light of publicity on severe human rights abuses in itself sometimes has the effect of mitigating them. Grier writes:
But the symbolic effects of new restrictions could be important. If the provision becomes law, Congress would be putting some distance between itself and the White House on a controversial issue. And the action could be interpreted as a statement to America's foreign critics.
John Dean also argues that the new anti-torture provision don't add anything essentially new to existing law: Shocking The Conscience Of America: Bush And Cheney Call For The Right To Torture And Are Decisively and Correctly Rebuffed by the House Findlaw.com 12/16/05. Technically, designating the United States Army Field Manual on Intelligence Interrogation as a more general standard is new. Dean parenthetically notes:
The new edition is about to be released; let us hope it does not contain unwelcome surprises for Senator McCain, and that the Army has proceeded, here, in good faith, rather than trying to undermine the Senator's legislation.
Neither Fisher nor Dean fully address one of my concerns about this aspect of the legislation. The Army Field Manual is written by the U.S. Army. Is it really appropriate for a document produced internally by the Army to be applied as the standard for civilian agencies? This is not just a technicality. A clear division between civilian and military authority is important. I wonder if there are any comparable instances in which civilian regulations are tied specifically to rules written by the Army.
Dean also articulates how important it is that Congress is taking some kind of a stand on this, in about as strong a way as I have seen so far:
The Bush/Cheney presidency has been pushing the nation toward an atrocity unmatched in the annals of American infamy and ignominy. Thankfully, a few wiser men and women in Washington have saved us from the national disgrace Bush and Cheney insisted upon imposing on the nation.
It's worth noting here that this is the type of sentence that dishonest rightwingers love to quote out of context to accuse critics of administration policy of being anti-American as an excuse to dismiss what they say. That statement of Dean's could be misquoted to claim Dean is saying that all of American history is just "annals of American infamy and ignominy." That's not at all what he is saying, nor could any honest reading of it mistake it for that. But I'm glad to see people speaking out clearly on this issue without being deterred by non-stop Republican smear machine.
Dean also points out that torture is already clearly illegal without the new Bush/McCain language:
McCain's second amendment [banning "cruel, inhuman, or degrading treatment or punishment"] offers nothing new - yet is, paradoxically, extremely important nonetheless. The amendment restates what is, in fact, the law under the Universal Declaration of Human Rights, adopted by the United States in 1948; the International Covenant on Civil and Political Rights, to which the United States is a signatory; and the Convention Against Torture, negotiatedby the Reagan Administration.
He goes on to explain that the Bush administration has used tendentious interpretations of the law to allow just about any kind of coercive act to be committed on prisoners - which they may well also do to evade the new law.
Dean's article is well worth reading in its entirety for those interested in understanding this issue. He summarizes the legal issues well, adds some historical perspective and gives his own refutation of the sophomoric ticking-nuclear-bomb justifications for torture. Given Dean's own unique experience with issues of Presidential misconduct, his views on the seriousness of the issue is sobering. In his opening paragraphs, for instance, he says, using examples that are perhaps more accessible for hardline Republicans than others might be:
If the events I am about to describe were taking place in a movie, or novel, I would lose my ability to suspend disbelief: Who could conceive of an American President and Vice President demanding that Congress give them authority to torture anyone, under any circumstances?
Yet that is exactly what happened. Until Congress - finally - showed some institutional pride and told Bush and Cheney that it would not tolerate torture.
To place this activity in context, I have been trying to think of a similar "un-American" low point in the American presidency. Possible candidates might include John Adams's approval of the Alien and Sedition Act of 1798, or Abraham Lincoln's suspension of habeas corpus during the Civil War.
But neither of these moments strikes me as sufficiently shameful. Indeed, not even Franklin Roosevelt's horrific internment of Japanese-Americans during World War II is, in my view, as low a point as President Bush and Vice President Cheney's call for the unrestricted, unreviewable power to torture. It seems the precedent for Bush and Cheney's thinking resides in the Dark Ages, or Stalin's Russia.
The "pessimist" over at The Left Coaster is being, uh, pessimistic about what we can expect from the Maverick's legislative intervention on this issue, worrying that "McCain's 'victory' will prove to be both illusory and very temporary": Sometimes I Hate Being Correct 12/17/05
He points to this post at Talk Left that warns us that we have immediately grounds for doubt in the form of the Graham-Levin rider: McCain Torture Policy Undercut By Amendment 12/17/05
Human Rights Watch agrees with such reservations in their statement U.S.: Landmark Torture Ban Undercut: Congress Would Allow Evidence Obtained by Torture 12/16/05.
Finally, Ray McGovern shares the skeptical that with which some of us anyway are regarding the latest developments: Bush Gesture to McCain: Less than Meets the Eye Truthout.com 12/16/05. He writes:
The unseemly spectacle of Vice President Dick Cheney and President George W. Bush openly opposing the McCain amendment banning torture for a torturous five months has done irreparable harm to America’s standing abroad. The damage will not be attenuated by the president’s reluctant acquiescence to the McCain amendment yesterday. The most that can be said is that the harm would have been still greater if McCain caved in to Cheney’s incredibly obtuse opposition, or if Bush had to veto must-pass defense legislation in order to defeat the amendment.
The Bush-McCain compromise changes very little. The interrogation practices banned are limited to those not authorized by the United States Army Field Manual on Intelligence Interrogation, which can be - is being - revised. The New York Times reported on Wednesday that the Army has approved a 10-page secret addendum to the Army field manual, a move that one Pentagon official described as “a stick in McCain’s eye.” McCain’s chief of staff minced no words in describing the move as “politically obtuse” and undertakenwithout “one molecule of political due diligence.”
The new manual, to be issued this month, spells out authorized interrogation techniques, but these remain classified. Having faced down Cheney, it will be interesting tosee if McCain’s courage extends to facing down Defense Secretary Rumsfeld’s transparent attempt to vitiate the amendment. Or will McCain and his congressional colleagues settle for a Potemkin-village-type victory, and leave the field for the clever lawyers around Cheney and Rumsfeld. The pleasant noises that McCain was making yesterday and premature comments of eager-to-please Jane Harmon, vice-chair of the House Intelligence Committee, suggest that, in the end, most legislators will settle for Potemkin.
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