No Torture Allowed—Although Some Members of Congress Should Probably Be Slapped Around a Little Posted by: Dale Franks
on Thursday, November 17, 2005
Rich Lowry opines that the John McCain anti-torture proposal is just political grandstanding.
According to McCain, it is necessary because the U.S. maintains that the prohibition against cruel, inhumane and degrading treatment, which it agreed to in the Convention Against Torture, doesn't apply to foreigners held overseas. Indeed, Congress was careful to include this caveat when it ratified the convention in 1994. As legal analyst Andy McCarthy notes, instead of closing this loophole, the McCain amendment appears to perpetuate it by repeating the same language Congress used to carve it out in 1994. This is legislative sleight of hand in the cause of moralistic self-congratulation.
The other part of the amendment gives the Army Field Manual and its standard for interrogations the force of law. This is where the amendment will have bite. In theory, the manual could be rewritten to allow explicitly for the kind of stress techniques - keeping detainees awake for long periods, putting them in uncomfortable positions, etc. - that have been controversial since 9/11. The existing manual frowns on these methods, and a new version currently being formulated is likely to be even more restrictive, although it will probably leave key questions vague.
The McCain amendment, however, will make any leeway in the manual moot. Because it creates no specific safe harbor for stress techniques, has no definition of what is cruel and inhumane and what isn't, and has been accompanied by a fusillade of congressional rhetoric against Bush administration interrogation policy, it will be interpreted as banning any technique overseas that we wouldn't use with criminal suspects in the United States. This is an unreasonable standard, and one that McCain and his backers apparently don't have the gumption to state and defend openly.
Lowry is undoubtedly right on that last point, and heck, John McCain is as much of a politician as anybody, so there probably is a large does of self-promotion in the anti-torture effort.
I note with interest, in my November, 2005 issue of Armed Forces Journal, in the "Capitol Hill Report Card" section, the editors give Sen. McCain an "A" grade for proposing the amendment (which was approved 90-9), and Sen. Frist an "F" for halting debate on the 2006 Defense Appropriations Act to prevent Sen. McCain from attaching his amendment to it. And the Armed Forces Journal is hardly a hotbed of anti-military, liberal bedwetting.
The president, of course, threatens to veto any legislation that contains the McCain torture ban, an act which would presumably earn Mr. Bush an "F" from the AFJ editors, as well. And I don't think there's any reason to rehash QandO's editorial position against the use of torture by US Armed Forces on the detainees in their custody, is there? We've taken plenty of heat for it, I think. But, I'm comfortable siding with AFJ's editors on this one.
I can think of very few circumstances where the use of torture would be appropriate and fewer still where such use should be condoned. If the President's argument that a ban on torture will hinder his ability to fight the War on Terror, then I think he must explain precisely why, and under what circumstances, torture would be appropriate, and precisely what torture methods he envisions as using, and his estimate of their effectiveness.
And even then, I'm not inclined to allow him to have the authority to commit acts of torture on his own discretion. I wouldn't agree to a principle, really, that allows any government to use torture as a legitimate tool of intelligence or warfighting, much less the government of the United States of America.
But, Mr. Lowry's article does point out that any ban on torture must be much more specific. There must, after all, be a number of interrogation techniques that couldn't be used in a US police station as part of a criminal investigation, but which would nevertheless be acceptable to use in interrogations for military intelligence purposes. But without explaining exactly what those methods are, the troops in the field will lack the political guidance necessary to limit themselves to the appropriate techniques. As result what will inevitably happen is that no stressful interrogation methods at all will be approved, or more loosely commanded units will end up going overboard.
Without some specific guidance that is clear and unambiguous, then congressional action on this issue is likely to remain nothing more than a political show, rather than offering the appropriate oversight that Congress is supposed to provide.
First, the UCMJ already criminalizes acts of torture (and provides a mechanism to determine which specific acts reach that standard of mis-conduct) by armed forces personnel so Sen. McCain’s self-adulatory stance simply confuses the existing lines of judicial authority. As a retired career Naval officer himself he has to know this.
Secondly, I strongly suspect that Pres Bush is simply unwilling to open his (and any succeeding) administration, DoD or Intelligence agency employees to endless legal accusations of nebulous criminality (you point out yourself the ambiguous specifics of "torture") by political or other enemies, foreign or domestic. For him to do otherwise would be the height of irresponsability.
It is not the business of the US Senate to involve itself in the re-writing of Army Field Manual(s) (which, please note, already have the force of law within the military) nor to threaten disruption of the entire civil government of the country in an attempt to unethically manipulate US foreign policy. Sen. McCain should be ashamed of himself as should you for treating his conduct as worthy of anything other then scorn.
I’d like to see you make me talk that way, Kyle. I’ve been in a room with a continuous loop of baby screaming— AND I had to change diapers too. Your Yoko Ono torture doesn’t faze me!
Unfortunately, what I go through every day would probably be considered torture too. Sleep deprivation?? Having to hold uncomfortable positions?? I laugh at anyone who thinks these are torture. Try being pregnant and giving birth unmedicated. Then we’ll talk about torture.