December 29, 2005


McCain's Retreat: Praise for the president's yielding to John McCain ignored the awful details in fine print (Nat Hentoff, December 23rd, 2005, Village Voice)

To begin, McCain, before his White House rapprochement with the president, had accepted administration language in his human rights amendment to give paid legal counsel and a certain amount of legal protection to interrogators—including the CIA's—accused of abusing prisoners. Their defense would be that a "person of ordinary sense and understanding would not know the practices were unlawful." Also, as at the Nuremberg trials after World War II, the defendants would say they were only following orders.

But as Josh White pointed out in the December 16 Washington Post, if these orders were plainly illegal, they would have to be disobeyed. In that case, what penalties would the commanders themselves, who gave the unlawful orders, face— including the top of the command at the Defense Department, the Justice Department, and the White House?

The Bush administration pressured McCain to accept this additional language in fear that, eventually, courts would decide that U.S. "coercive interrogations" have indeed violated U.S. law and international treaties we have signed. The ACLU and human rights organizations have already filed lawsuits making these claims against high levels of the administration.

Much more serious— and ignored by most of the media—is an amendment— voted for by McCain—to the Defense Authorization bill by Lindsey Graham (R-South Carolina), Carl Levin (D-Michigan), and Jon Kyl (R-Arizona).

Tom Wilner, a constitutional lawyer who represents a number of Kuwaiti detainees (a/k/a prisoners) at Guantánamo, gets to the chilling core of the amendment:

"This amendment [which McCain has approved] tears the heart out of anything good that the McCain prohibition [against cruel, inhuman, and degrading treatment] does. It strips the right of habeas corpus from detainees at Guantánamo, prohibits them from suing U.S. officials for their treatment, and in new language slipped into the bill [during the House-Senate conference committee sessions] actually authorizes the tribunals at Guantánamo [for enemy combatants] to use statements obtained through coercion [including torture] as 'probative' [testimony]. That provision works a significant change of existing U.S. and international law and actually provides an incentive for U.S. officials or officials from other governments through [CIA] rendition [sending terrorism suspects to other countries to be tortured], to obtain such coerced statements." (Emphasis added.)

Accordingly, Tom Wilner tells me, this "McCain/Graham/Levin/Kyl package is a disaster—a giant step backward for human rights. . . . By eliminating the Great Writ [habeas corpus] and authorizing the use of coercion, this amendment un- dermines the very foundation of our system.

"These changes far out- weigh the language for which Senator McCain has been so complimented, prohibiting the government from torturing or engaging in cruel, inhuman, or degrading treatment."

Furthermore, how does this administration actually define torture anywhere? From a December 16 Washington Post editorial after Bush's "surrender" to McCain: "Mr. Bush's political appointees at the Justice Department [Alberto Gonzales at the top] and the Pentagon [Rumsfeld et al.] have redefined both 'torture' and 'cruel, inhuman, and degrading treatment' as not covering in all circumstances such CIA techniques as 'waterboarding,' or simulated drowning; 'cold cell,' the deliberate inducing of hypothermia; mock execution; and prolonged and painful 'short-shackling.' It has taken these positions, even though 'cruel, inhuman, and degrading treatment' as defined by the Senate [passage of the McCain amendment] covers everything that also would be prohibited by the Constitution [against prisoners held in the U.S.]. . . .

"[Accordingly,] the administration has adopted logic that accepts, in principle, the idea that the FBI could constitutionally use them on U.S. citizens in certain circumstances."

Luckily, ony a very few folks like Nat Hentoff are serious enough, even if mistaken, about civil liberties and human rights, to pay attention to the reality instead of the anti-Bush atmospherics.

Posted by Orrin Judd at December 29, 2005 10:55 AM

The Amendment brings practice and procedure direnctly in line with current S.Ct. LoW cases.

Quirin is the applicable case, not Milligan. Milligan is how we talk when there is absolutely no threat.

Posted by: Lou Gots at December 29, 2005 12:30 PM