McCain And Torture, Part Two

This is the second post in what hopefully will not become a series on John McCain and the politics of torture. You can read the first post here, if you like.

SEC. 327. LIMITATION ON INTERROGATION TECHNIQUES.
(a) LIMITATION.—No individual in the custody or under the
effective control of an element of the intelligence community or
instrumentality thereof, regardless of nationality or physical location,
shall be subject to any treatment or technique of interrogation
not authorized by the United States Army Field Manual on Human
Intelligence Collector Operations.

That's the section of HR-2082 that John McCain had an issue with. It's one clause in a military appropriations bill, but it was enough to cause McCain to vote against it. The bill passed, but was vetoed by The Decider. The vote to override the veto fell short--there are simply too many torture-loving Republicans in the House.

Of course, there could be any number of reasons that McCain voted against the bill. He is marketed as a fiscal conservative, after all. Maybe he wanted to reduce the budget for the military. Yeah, right. McCain was actually crystal clear on his reasons for voting against this bill. His statement on the floor of the Senate starts with this:

Mr. President, I oppose passage of the intelligence authorization conference report in its current form.

During conference proceedings, conferees voted by a narrow margin to include a provision that would apply the Army Field Manual to the interrogation activities of the Central Intelligence Agency.

And in fact, his entire statement is about how the Army field manual is insufficient for non-military intelligence agencies, specifically the CIA. The problem with the Army field manual is that it makes clear and plentiful references to the Geneva Conventions for treatment of prisoners of war. For example, in section 5-73, the manual quotes Article 17:

No physical or mental torture or any other form of coercion may be inflicted on EPWs to secure from them information of any kind whatever. PWs who refuse to answer may not be threatened,insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

The field manual not only makes extensive reference to the Geneva Conventions, it also explains why we want to adhere to them. However, this flies directly in the face of the Military Commissions Act of 2006 (MCA), which states:

GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS.
—No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

§ 948c. Persons subject to military commissions
Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

The MCA also states that information obtained through the use of torture (or "in which the degree of coercion is disputed") may be admissible in a tribunal so long as a military judge determines:

(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
(2) the interests of justice would best be served by admission of the statement into evidence; and
(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.

Wow. That's a grey area big enough to drive a truck through. The Detainee Treatment Act of 2005, which McCain holds up as an example of the laws that protect Illegal Enemy Combatants, states:

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.

The DTA subsequently gets its definition of "creul, inhuman, or degrading treatment or punishment" from 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. That document states:

the United States considers itself bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

Wouldn't it fall to the Supreme Court, then, to determine the legality of various interrogation methods, since they are the final arbiter of what is or isn't constitutional? I don't believe that the SC has declared waterboarding to be unconstitutional. In fact, according to the Washington Post:

Supreme Court Justice Antonin M. Scalia echoed the administration's view when he said in a BBC Radio interview yesterday that some physical interrogation techniques could be used on a suspect in the event of an imminent threat, such as a hidden bomb about to blow up. "It would be absurd to say you couldn't do that," Scalia said. "And once you acknowledge that, we're into a different game: How close does the threat have to be? And how severe can the infliction of pain be?"

So with the Bush administration, the Bush Justice Department, and at least one Supreme Court Justice lining up on the side of torture, the only way to protect anyone from the eager ghouls in the CIA is through the type of legislation that John McCain voted against--because he is in favor of torture.

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