| WHY THE McCAIN AMENDMENT MUST BECOME LAW
1 December 2005
Arizona Republican Sen. John McCain's Amendment to the 2006 Department of Defense Appropriations Bill —SA1556— proposes that "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment" as "prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States" and "the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment".
The Amendment came at a time of increased and ongoing revelations about the apparent use of extralegal and abusive methods of interrogation in military prisons around the world. It was co-sponsored by Senators Lindsey Graham (R-SC), Chuck Hagel (R-IN), Gordon Smith (R-OR), Susan Collins (R-ME), Lamar Alexander (R-TN), Richard J. Durbin (D-IL), Lincoln Chafee (R-RI), John Sununu (R-NH), Carl Levin (D-MI), John Warner (R-VA), and Ken Salazar (D-CO).
On 5 October, the Senate voted 90 to 9 in favor of McCain's proposed torture limitations —Sen. Corzine (D-NJ) was fighting a sticky gubernatorial campain in his home state, but expressed support—, sending a message to the White House that stalling was not an appropriate means of defining the US position on torture. The resulting limitations would amount to an outright ban on torture anywhere US personnel operate, at any level, for any purposes.
The President's response, despite repeated assertions that "We do not torture", was to threaten a veto of the entire Defense Appropriations bill, which provides vital funding he would require for his war on terror. The White House has launched a public-relations spin campaign to promote the perception that they do not support torture, though officially, they refuse to support its being prohibited.
McCain has real authority on the subject. So much so that his voice tends to resonate across all major media when the topic is torture. That's because, as is well known, McCain spent 5 1/2 years in Vietnamese prisons, an experience which included extensive ongoing abuse and torture.
He comes to the issue with an incomparable view, able to perceive both the interests of the state he has served throughout his adult life and the basic standards of human rights for which he has fought and suffered, under the flag of that government. He knows what torture does to people, what kind of public relations it brings for its perpetrators, how severely it erodes the rule of law and whether it yields reliable information.
So it's safe to say he's not addressing the issue of the nation's founding ideals informed only by the wide-eyed innocence of an idealistic schoolboy. Sen. McCain wants to explicitly ban all forms of torture and inhumane treatment of any prisoner held anywhere in the world by agents of the US. He believes it is necessary to do so, because the executive is apparently convinced it is permissible —various legal memos have been requested and produced that say so, and the VP has gone so far as to personally visit McCain to ask outright for a special provision exempting the CIA from the ban, with these hints culminating in the surprising veto threat—, and because the courts appear not entirely decided on the issue.
Sen. McCain believes it is inconsistent with the values, the tradition, the aims and the meaning of American democracy to even indulge the idea of using torture for any reason. He has repeatedly told the press and his administration opponents that it is not about the terror suspects, the detainees, the enemy combatants or whatever else they might be called. "It's about us" he's fond of saying.
It is irrelevant whether any terrorist enemy has signed the Geneva Conventions, he argues. We did, so under Article VI of the Constitution, they are "the supreme Law of the Land", and we must follow their standards, however strict or inconvenient they may appear to those who wield the nation's military power.
The administration has argued, before the press and the courts, that the Geneva Conventions, the Universal Declaration of Human Rights, the Uniform Code of Military Justice and the United Nations Convention Against Torture —all of which forbid torture— cannot be applied in the "war on terror", because it's not a war against a sovereign state or a party to those treaties.
The president's lawyers argued before the Supreme Court that the president had sole authority, vested in him, they claimed, by the Constitution, to judge whether American citizens could be classified as "enemy combatants", stripped of all constitutional rights and held incommunicado and without charge, with no judicial review.
That argument posed very serious threats to the constitutional system of checks and balances and could not be supported by any specific section of Article II of the Constitution, which defines presidential authority. It implied that the president could, at his own discretion, relegate the Congress and the courts to irrelevance, assuming the powers of all 3 branches in himself.
The Supreme Court rejected the administration's argument, mandating that all such cases undergo judicial review and that American citizens not be stripped of constitutional protections and the right to due process, even though it upheld the executive's right to detain actual battlefield captures indefinitely, provided they met judicial standards for illegal "enemy combatant" status.
Now, Vice President Cheney's unashamed pro-torture lobbying has made the United States, in the words of Human Rights Watch, "the only government in the world to claim a legal justification for mistreating prisoners during interrogations". In late November, Colonel Lawrence Wilkerson, fmr top aide to Colin Powell, laid the blame for the various converging torture scandals at Cheney's feet, suggesting a motive (albeit without concrete evidence) for the strange lobbying effort.
In early November, facing firm opposition from the White House, Sen. McCain pushed to have the torture ban wording added to another piece of defense-related spending legislation, to ensure its being enacted as law, and the Senate agreed to add the language. McCain addressed opposition from the floor of the Senate, saying "If necessary —and I sincerely hope it is not— I and the co-sponsors of this amendment will seek to add it to every piece of important legislation voted on in the Senate until the will of a substantial bipartisan majority in both houses of Congress prevails".
He has also outlined why prisoner abuse undermines national security, saying "the intelligence we collect must be reliable and acquired humanely", going as far as to say "To do differently not only offends our values as Americans, but undermines our war effort, because abuse of prisoners harms —not helps— us in the war on terror". He also added succinctly that "subjecting prisoners to abuse leads to bad intelligence".
In mid-November, the Senate unanimously approved the $490 billion Defense spending bill, including the torture ban, on 15 November, and the bill has since gone on to conference committee, where the House bill, which does not include the language of McCain's torture ban, must be reconciled with the Senate measure, some time in December. Rep. Murtha (D-PA) says he will lead the effort to express the voice of a majority of House members which want the ban to remain in the final legislation.
The lack of such wording in the House bill means passage of the ban is not certain in the end. Various measures have also been added in an attempt to dilute McCain's ban by stripping detainees of certain rights. In 2004, the Supreme Court ruled that foreigners do enjoy the right of habeas corpus under the US Constitution, meaning that authorities must prove to a court they have reason for detaining someone.
Sen. Lindsey Graham quietly attached an amendment to the legislation that would ban any appeal by Guantánamo detainees to US courts, but pressure from Sen. Levin and others forced Graham to change the language and accept appeals and the right to hearings in civilian courts. So the battle goes on, and will likely intensify in the near future.
The McCain anti-torture amendment must become law, precisely because the system which upholds the rule of law over the actions of the US government is in dire need of such a clear declaration of legal limits on those actions. If not, the US government, the military and We the People, will continue to be mired in a dangerous bog of conflations and deviations which threaten to undermine 216 years of legal, judicial and practical precedent.
Current executive policy, ill-defined as it may be, directly contravenes over 2 centuries of constitutional aspirations, interpretations and law. It should be cause for astonishment for any thinking person, for any proud citizen of a free society —now that those who hold power in elective office have framed the debate so starkly— if phones in every congressional office were not tied up continually with the voices of people who want their government to defend due process and the rule of law and not the whim of the powerful, against which the nation's founding laws were erected. [s]
UPDATE: BUSH AGREES TO McCAIN'S FULL BAN ON TORTURE, INHUMANE TREATMENT OF TERROR SUSPECTS
President Bush has announced his support for Sen. John McCain's proposed ban on cruel, inhumane and degrading treatment of detainees in the "war on terror". The White House had opposed the ban, and the vice president had actively lobbied Congress to include an exception for the CIA. Sen. McCain repeatedly refused to weaken the ban, and both houses of Congress voted overwhelmingly to support it as written. [Full Story]
In a ruling today on the case of American citizen and detainee Yaser Esam Hamdi, the Supreme Court upheld due process rights for all detainees. The ruling reinforces the essential Constitutional role of the Judiciary branch in the adjudication of accusation of crimes, whether against domestic law or national security. [Full Story]
AG John Ashcroft was called to testify before the Senate Judiciary Committee today. Sen. Kennedy and others on the Committee are seeking Justice Department memoranda linked to an ongoing debate within the Bush administration regarding the use of extreme stress and torture as interrogation methods. The Wall Street Journal and the AP report the administration determined torture was legal and that the memoranda now sought represent the passing of this finding from one agency to another, eventually advising the President himself of their findings. [Full Story]