The McCain Admendment


A showy effort to hamstring the war effort
Andrew McCarthy calls it right.

The grandstanding elements are plain enough. First, the whole exercise is a melodramatic condemnation of torture — capitalizing on the Abu Ghraib scandal and isolated instances of prisoner abuse which, while deplorable, are not only infrequent by historical standards but compare favorably to the civilian detention system.

None of it is necessary. Torture is already against the law. It is, moreover, the intentional infliction of severe physical or mental pain — which is to say, much of the prisoner abuse that has prompted the current controversy has not been torture at all. Unpleasant? Yes. Sometimes sadistic and inexplicable? Undoubtedly. But not torture. And where it has been either torture or unjustifiable cruelty, it is being investigated, prosecuted, and severely punished.

Second, the McCain Amendment affects a high-minded prohibition against "cruel, inhuman and degrading treatment." This, too, is a meaningless gesture — except to the extent it will be perceived by McCain's breathless following in the mainstream media as a political slapdown of the president, the secretary of Defense, and the military brass.

That's because the provision does not change existing law a wit. In 1994, the United States ratified the 1984 United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment (UNCAT).

But wait a minute, you say. Haven't commentators (like yours truly) noted that the Senate approved the treaty with a heavy caveat? Indeed it did. The Senate provided that the treaty was limited by the Fifth, Eighth and Fourteenth Amendments to the Constitution. Although those amendments call for due process and bar both coerced confessions and cruel and unusual punishments, they have largely been limited to judicial proceedings involving criminal defendants. Thus, they are essentially irrelevant to wartime detentions of alien enemy combatants.

So does the McCain Amendment change that? No. It contains exactly the same reservation. In fact, it expressly reiterates the UNCAT caveat and explicitly cites to it, lest there be any confusion. On this, again, it is all show and no substance.

So what's different? That question brings us to the suicide part. McCain wants to turn every enemy combatant into an honorable prisoner of war — at least to the extent that such prisoners are protected under the Geneva Conventions against any type of coercive interrogation.

The McCain Amendment provides that no prisoner held by the Defense Department "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." That manual expressly forbids any use of force, coercion or intimidation in conducting questioning, even if such tactics fall short of torture, even if the prisoner is a terrorist guilty of war crimes, and even in a matter of life-and-death — perhaps thousands of deaths.

It's not about dealing with the "problem," it is about giving a feel good photo op that looks good, but only prevents the job from being done.

I do not like Senator McCain. At the very least I think that introducing McCain-Feingold violated his Congressional oath. This is merely another example of Mr. McCain playing to the cameras rather than to his constituents.

— NeoWayland

Posted: Wed - November 16, 2005 at 05:03 AM  Tag


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