The problem with all the puffery and sanctimony of McCain on torture is that it is meaningless. He has not done anything to close the loopholes the Bush administration created to allow persons detained by the United States to be tortured with impunity. Forget hypocrisy. McCain is a failure.
Here is Scherer's summary of McCain's efforts to stop torture.
McCain has long argued that the Bush Administration overstepped its legal authority by approving techniques like waterboarding, and has successfully championed two efforts to try to limit the White House to the plain language of international treaties, which ban cruel, inhuman or degrading treatment. McCain has also spoken in opposition to other techniques in the CIA arsenal like sleep deprivation and the use of stress positions, both of which were employed by the North Vietnamese during McCain's captivity as a prisoner of war and may still be employed by the CIA.
As impressive as all that arguing, championing, and speaking in opposition seems at first glance, it is as effective as a Humvee with canvas doors in stopping shrapnel from a well-placed improvised explosive device. Since Scherer and other professional journalists refuse to critically examine the miracles of McCain, us amateur skeptics will have jump into the breach. Let's start with a brief history of the Bush Inquisition.
The Bush Inquisition
One terrorist attack against the world's only superpower created such a panic that our glorious neoconservative leaders decided that America could not survive against a bunch of criminals living in caves unless we went all Jack Bauer on their barbarian asses. In order to create a new world order, the first step was to dispense with the rule of law or at least enough of it to avoid prosecution. The Bybee Memo (pdf warning) was produced in 2002 by the Office of Legal Counsel in the Department of Justice at the behest of Alberto Gonzales, Counsel to the President. This 50-page "legal" brief provided a "Golden Shield" for the real life Jack and Jackie Bauers in the CIA to torture and for Bush National Security Council to choreograph torture.
The Bybee Memo created four major loopholes for torture lovers:
1. Define torture so narrowly that nearly anything goes.
For the foregoing reasons, we conclude that torture as defined in and proscribed by Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed in Section 2340. Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.
2. Define victim as an unlawful combatant not covered by the Geneva Conventions
While Article 17 of the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3517, places restrictions on interrogation of enemy combatants, members of al Qaeda and the Taliban militia are not legally entitled to the status of prisoners of war as defined in the Convention.
3. Note that victim must be in our custody or direct physical control to be held accountable for torture. (*What happens to our prisoner while vacationing in Jordan or Egypt is not our responsibility.)
Thus, to convict a defendant of torture, the prosecution must establish that (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering, and (5) that the act inflicted severe physical or mental pain or suffering.
4. The Commander in Chief has the authority and responsibility to torture enemy combatants for the "good" of the nation.
Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.
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Department of Justice could not could not enforce Section 2340A against federal officials acting pursuant to the President’s constitutional authority to wage a military campaign.
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Indeed, al Qaeda plans apparently include efforts to develop and deploy chemical, biological and nuclear weapons of mass destruction. Under these circumstances, a detainee may possess information that could enable the United States to prevent attacks that potentially could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.
After we decided to violate international law to liberate Iraq, further expansion of the authority to torture was needed. A JAG Major by the name of John Yoo came to the rescue with another memo (pdf warning). The purpose of this new memo, dated March 14, 2003, was to include the military in the extraction of fun facts from bad guys. (I am sure the delivery of this document five days before the start of the Iraq war was purely coincidental.)
Yoo's charge:
You have asked our Office to' examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States. You have requested that we examine both· domestic and international law that might be applicable to the conduct of those interrogations.
Yoo concluded the military could join the fun as long as the same rules applied to the CIA were followed.
For the foregoing reasons, we conclude that the Fifth and Eighth Amendments do not extend to alien enemy combatants held abroad. Moreover, we conclude that different canons of construction indicate that generally applicable criminal laws do not apply to the military interrogation of alien unlawful combatants held abroad. Were it otherwise, the application of these statutes to the interrogation of enemy combatants undertaken by military personnel would conflict with the 'President's Commander-in-Chief power.
We further conclude that CAT* defines U.S. international law obligations with respect to torture and other cruel, inhuman, or degrading treatment or punishment. The standard of conduct regarding torture is the same as that which is found in the torture statute, 18 U.S.C. §§·.234D2340A. Moreover, the scope of U.S. obligations under CAT regarding cruel, inhuman, or degrading treatment or punishment is limited to conduct prohibited by the Eighth, Fifth and Fourteenth Amendments. Customary international law does not supply any additional standards.
Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability.
*CAT = Convention Against Torture
After our glorious liberation of Iraq, thousands of men with guns start killing our soldiers and unarmed Iraqis, spoiling our victory parade for a mission Bush told us was already accomplished. Unfortunately, the military misread the CIA manual on how to torture and allowed a few enlisted men and women to photograph top secret interrogation techniques. Instead of destroying evidence of torture as required by law, someone jeopardized national security by showing the pictures to Seymour Hersh. For some reason, the world was not amused by our handiwork in Abu Ghraib prison. Jack Goldsmith, head of the Office of Legal Counsel, decided to rescind the Bybee and Yoo memos and jump ship.
Enter McCain
John McCain was not pleased with the composition and aesthetic value of the Abu Ghraib photographs. He climbed on his white horse and wrote an amendment to the Department of Defense Appropriations Act of 2006 that came to be known as the Detainee Treatment Act of 2005.
Here is the text:
SEC. __. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.
(a) IN GENERAL.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.
(b) APPLICABILITY.--Subsection (a) shall not apply to with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.
(c) CONSTRUCTION.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.
SEC. __. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.
(a) In General.--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.
(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.
(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.
(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
Maverick McCain blew the smoke from the barrel of his pea-shooter and holstered his mighty weapon. Now everyone would know he was a good guy, wears a white hat, and returned America to her rightful place as the paragon of virtue. It was better than Viagra. He felt so good about himself that he believed he owed it to the country to run for president.
Not so fast, Maverick. It turns out your weapon was mostly loaded with blanks.
After passage of the Detainee Treatment Act, George W. Bush took out his purple crayon and scrawled:
"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."
Translation: Loophole 4 (the President can torture anyone labeled a terrorist) still applies.
Then McCain was "Camboned."
WASHINGTON, Dec. 13 - The Army has approved a new, classified set of interrogation methods that may complicate negotiations over legislation proposed by Senator John McCain to bar cruel and inhumane treatment of detainees in American custody, military officials said Tuesday.
The techniques are included in a 10-page classified addendum to a new Army field manual that was forwarded this week to Stephen A. Cambone, the under secretary of defense for intelligence policy, for final approval, they said.
The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations.
Some military officials said the new guidelines could give the impression that the Army was pushing the limits on legal interrogation at the very moment when Mr. McCain, Republican of Arizona, is involved in intense three-way negotiations with the House and the Bush administration to prohibit the cruel treatment of prisoners.
So where does all this leave our inalienable right to torture foreigners? It must be a step in the right direction because the Wall Street Journal hated it, claiming it was an overreaction to Abu Ghraib, sends the wrong message to terrorists, and a PR stunt. That's a pretty strong endorsement of the McCain amendment except the smoke and mirrors charge has merit. Take a closer look:
- McCain forced the military to follow Army Field Manual in interrogating detainees in military custody (except the Manual was revised to remove references to the Geneva Conventions and to define inappropriate treatment more liberally).
- The CIA and other intelligence agencies are not bound by the restrictive Army Training Manual, leaving considerable latitude in the interpretation of cruel, inhumane, or degrading treatment (see Loophole 1 for how these standards have been interpreted by former and current members of the Bush administration). Note that all the legal standards referred to in the Detainee Treatment Act were in place when the Bush administration ordered torture and are explicitly mentioned in the Bybee and Yoo memos:
...cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
- McCain was successful in getting everyone in US custody covered under the umbrella of the Detainee Treatment Act (Loophole 2), but it means nothing in light of Loopholes 3 and 4.
- The Detainee Treatment Act does not apply to detainees that are temporarily out of US custody (see Loophole 3).
- The President can still order torture (see Loophole 4) and Bush added a signing statement as an exclamation point.
Impressed yet? Not trusting Bush, Congress tried to slam the door shut on torture by forcing the CIA and other intelligence agencies to abide by Geneva Conventions by binding their interrogation methods to those specified in the Army Field Manual. In steps Maverick McCain to save the day with another proud display of courage. He stands up to Congress, demanding that the CIA should not be encumbered by the restrictive standards applied to military interrogators.
Here is how Scherer tells the story:
"The field manual, a public document written for military use, is not always directly translatable to use by intelligence officers," McCain explained in February, reiterating his position from 2005. He added that the CIA should be allowed to use "alternative interrogation techniques," that are not otherwise outlawed as unduly coercive, cruel, inhumane or degrading. McCain has not publicly described the techniques that he believes fall into that category
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So, torture is the eye of the beholder. When the beholder is named Bush or Cheney or Gonzales, anything short of organ failure or death is justified in the name of keeping us all safe from a few thousand criminals that aspire to be mass murderers. McCain promises he will practice a kinder and gentler form of torture, but he wants the CIA to have the flexibility to rely on conscience and the Department of Justice to provide good guidance.
McCain is more than a loophole
Need more proof that McCain's surge on human rights is about as meaningful as his commitment to fiscal responsibility, environmental protection, and campaign finance reform?
Maverick voted to confirm Alberto Gonzales as Attorney General. This vote is impossible to reconcile with McCain's self-professed concern about torture. When he cast his vote, McCain was well aware that Gonzales has referred to the Geneva Conventions as "quaint" and helped to craft the torture policies of the first Bush term. It would be too kind to suggest that Gonzales was evasive in answers to questions about torture during the confirmation hearings. Gonzales went on to smash the glass ceiling for incompetence, corruption, partisanship, and psychopathy.
Maverick also voted to confirm Michael Mukasey as Attorney General despite his refusal to answer questions about waterboarding. Since Mukasey took the reins, the acting head of the Office of Legal Counsel, Steven Bradbury, has testified before Congress thatwaterboarding as practiced by the skilled hands of the CIA does not qualify as torture.
Maverick has not opposed the nomination of Steven Bradbury to become official head of the Office of Legal Counsel in the Bush Department of Justice. Senator Durbin makes his opposition to Bradbury crystal clear.
In 2005, President Bush nominated Steven Bradbury to succeed him. He has been the de facto head of the Office of Legal Counsel for over 2 years.
During the confirmation process, Mr . Bradbury has refused to answer questions from Judiciary Committee members regarding torture .
In November 2005, I initially objected to Mr . Bradbury's nomination, and I said:
Mr . Bradbury is currently the acting head of the Office of Legal Counsel. In this capacity, he approves Justice Department legal opinions. Since the Justice Department refuses to provide us with OLC opinions on interrogation techniques, we do not know enough where Mr . Bradbury stands on the issue of torture . What we do know is troubling. Mr . Bradbury refuses to repudiate un-American and inhumane tactics, such as waterboarding, mock execution, and physically beating detainees.
There are also seriously unresolved questions about Mr . Bradbury's role in the NSA warrantless surveillance programs. Last year, the Justice Department's Office of Professional Responsibility opened an investigation into the conduct of the Justice Department attorneys who authorized the NSA program. In an unprecedented move, President Bush personally denied security clearances to the Justice Department investigators, effectively blocking the investigation. Documents provided to the Senate Judiciary Committee suggest that this internal investigation was looking into whether OLC engaged in misconduct while Mr . Bradbury was acting head of OLC.
In August 2006, Senator Kennedy, Senator Feingold, and I sent a letter to President Bush calling for him to allow an internal investigation relative to this issue . We have not received a response.
Recent reports regarding Mr . Bradbury's involvement in approving the legality of abusive interrogation techniques provide further evidence of his unsuitability. According to an October 4 article in The New York Times, Mr . Bradbury signed two OLC legal opinions approving the legality of abusive interrogation techniques.
Mr . Bradbury reportedly authored an opinion on so-called ``combined effects,'' which authorized the CIA to use multiple abusive interrogation techniques in combination. According to The Times, then-Attorney General Alberto Gonzales approved this opinion over the objections of then-Deputy Attorney General Comey, who said the Justice Department would be ``ashamed'' if the memo became public.
The Times also reports that Mr . Bradbury authored and Alberto Gonzales approved an OLC opinion concluding that abusive interrogation techniques such as waterboarding do not constitute cruel, inhuman or degrading treatment. This opinion was apparently designed to circumvent the McCain Torture Amendment, then being considered by Congress, which clarified that such treatment is absolutely prohibited.
By contrast, here is Maverick McCain's only public statement on Steven Bradbury.
McCain: Oh, you know, if I'd have written it all myself? No. But I'm satisfied with the result. It's a process we go through here. Except the one major bump in the road, we've had good faith negotiations with the White House on it. [Stephen] Hadley and [Steven] Bradbury have been honest brokers, and I know that the President directed them to sit down and work this out because we had the same goal.
Maverick has not be willing to hold anyone beyond a few enlisted soldiers accountable for the abysmal human rights record of the United States during the Bush administration.
Maverick has been silent on the recent revelations that torture was orchestrated from the top of the Bush administration.
The bottom line on McCain and torture.
McCain has failed to provide strong leadership on torture despite have been subjected to torture as prisoner of war in Vietnam. Beyond his stated opposition to the use of waterboarding, he has not specified what constitutes unduly coercive, cruel, degrading, or inhumane treatment by CIA operatives. He has shown no interest in ending the practice of extraordinary rendition. Thanks to the Bush precedent, the Commander-in Chief remains free to order torture by members of the intelligence community. He has held no one accountable for providing the legal foundation for torture or ordering the violations of domestic and international laws. None of this is complicated or requires nuance. McCain said no to torture by the military but has done next to nothing to stop torture by other agents of the American government.
There are no excuses for McCain to hide behind when it comes to torture. Because he was tortured by agents of a foreign government, he has the strongest possible personal incentive to stop torture. It should be his signature issue and he should be a tireless fighter against torture. Instead, McCain has talked tough and done so little. There is no compelling reason why a victim of torture would refuse to (a) prohibit harsh interrogation techniques by the CIA, (b) explicitly restrict the discretionary powers of the President to order torture, and (c) prohibit extraordinary rendition to torture beyond the limits of US law. I have a hard time believing that POW McCain would have found compelling reasons to give the North Vietnamese government a pass on torturing American military or civilian detainees as long as it was done by members of the intelligence community and ordered under the executive powers of Ho Chi Minh as necessary to keep his country safe from future attacks. Senator McCain is more than willing to set the precedent of having American or even foreign intelligence agents torture detainees under orders of the US president.
McCain apologists are likely to say that there are limits to the legislative power of one Senator, even for one who could galvanize public opinion because of his experiences of being tortured. The "I am but one Senator" excuse does not protect against McCain's votes to approve the nominations of Gonzales and Mukasey, nor his failure to oppose the nomination of Steven Bradbury.
McCain's tough talk and weak action have several obvious benefits for the Maverick. With each public statement on torture, McCain has the perfect opportunity to remind the voting public that he is a sympathetic (if not downright heroic) figure because he was tortured while serving this country. Refusal to take a tough legislative stand on torture means that he does not risk alienating his Republican base of cowards who need to believe that Jack Bauer is out there somewhere kicking terrorist ass. Finally, the loopholes he was worked so hard to protect will mean that if wins his bid to become the 44th President of the United States, he will have the ability to torture anyone he deems necessary.
Let me conclude with the tepid defense of John Yoo by Christopher Edley, Jr. ("The Honorable William H. Orrick, Jr. Distinguished Chair and Dean UC Berkeley School of Law"):
Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda purported to find available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.
John McCain has chosen not to set binding legal precedent against torture or to hold the legal advisers or the deciders accountable for torture by the United States. Flop, Maverick, flop.
