November 09, 2005

McCain Amendment--Update

Its gone largely unnoticed in the blogosphere (as far as I can tell) but Glenn Reynolds has come out in favor of the McCain Amendment (sans the Cheney CIA carve-out). Bravo to Glenn for lending his keen mind and blogospheric authority to this noble fight. Another intelligent conservative with a robust conscience (not to mention rational antenna looking at this issue through a sober prism of cost & benefits too, including how the ticking-time bomb hypo would really play out), is Ross Douthat. Ross, albeit with some reticence, agrees that the McCain Amendment is the way to go. And Ramesh Ponnuro distances himself from a NRO editorial on the issue (a sad, sad moment in the history of that estimable periodical).

I'll have more information soon on why certain revisions to the McCain Amendment under discussion, some of which will be portrayed as the very height of innocuous tweakage, would actually defang the McCain Amendment and leave it without any real import or substance. In other words, passage of a (poorly) revised McCain amendment might even make things worse than they currently are, ironically. So stay tuned.

Posted by Gregory at November 9, 2005 12:57 PM | TrackBack (3)
Comments

NRO? Estimable?

All the hackery that's fit to print.

Posted by: what at November 9, 2005 02:40 PM | Permalink to this comment Permalink

I support the McCain amendment's first provision (requiring military personnel to use the Army Field Manual's interrogation guidelines) but strongly oppose the second provision, which prohibits non-citizens outside the U.S. from being by held by any U.S. official (e.g., a CIA agent) in a manner that would be unconstitutional if applied within the U.S. (foreigners abroad generally aren't entitled to any constitutional rights). This provision is significantly broader than one that prohibits torture (which, incidentally, is already on the books); not all treatment that would be considered "cruel and unusual" under our Constitution standards rises to the level of torture.

Do we really want terrorists/insurgents detained abroad to be accorded the same rights as criminal suspects/convicts in the United States? Do we really want to prohibit interrogators from questioning persons for more than a few hours at a time, or perhaps prevent interrogators from making a veiled threat that a detainee who doesn't cooperate might be shipped to another country that might treat him more harshly (I'm talking about threatening rendition, not actually carrying it out)? Do we want to prohibit interrogators from playing loud music regularly to keep a detainee skittish? None of the above-mentioned examples constitute "torture" in the generally-understood sense, though most would likely be unconstitutional if done in the United States. All would likely be prohibited by the McCain amendment. I just don't see why we'd want to place a blanket prohibition on all these tactics with respect to terrorist suspects held abroad (I'm NOT talking about battlefield detainees covered by the Geneva Conventions).

There might be some conduct that, while not rising to the level of torture, we nevertheless want to prohibit in all circumstances. Unfortuntately, the McCain amendment goes much farther than that.

Posted by: Gene at November 9, 2005 05:01 PM | Permalink to this comment Permalink

I support the McCain amendment's first provision (requiring military personnel to use the Army Field Manual's interrogation guidelines) but strongly oppose the second provision, which prohibits non-citizens outside the U.S. from being by held by any U.S. official (e.g., a CIA agent) in a manner that would be unconstitutional if applied within the U.S. (foreigners abroad generally aren't entitled to any constitutional rights). This provision is significantly broader than one that prohibits torture (which, incidentally, is already on the books); not all treatment that would be considered "cruel and unusual" under our Constitution standards rises to the level of torture.

Do we really want terrorists/insurgents detained abroad to be accorded the same rights as criminal suspects/convicts in the United States? Do we really want to prohibit interrogators from questioning persons for more than a few hours at a time, or perhaps prevent interrogators from making a veiled threat that a detainee who doesn't cooperate might be shipped to another country that might treat him more harshly (I'm talking about threatening rendition, not actually carrying it out)? Do we want to prohibit interrogators from playing loud music regularly to keep a detainee skittish? None of the above-mentioned examples constitute "torture" in the generally-understood sense, though most would likely be unconstitutional if done in the United States. All would likely be prohibited by the McCain amendment. I just don't see why we'd want to place a blanket prohibition on all these tactics with respect to terrorist suspects held abroad (I'm NOT talking about battlefield detainees covered by the Geneva Conventions).

There might be some conduct that, while not rising to the level of torture, we nevertheless want to prohibit in all circumstances. Unfortuntately, the McCain amendment goes much farther than that.

Posted by: Gene at November 9, 2005 05:02 PM | Permalink to this comment Permalink

Bush needs to back this. It causes no harm to his vision of the future. And if this is what the world needs to let us get back to fighting the WOT, then so be it.

Posted by: plainslow at November 9, 2005 06:54 PM | Permalink to this comment Permalink

I would agree to this bill, as I agreed to the Patriot Act, if it would include a sunset provision. I do worry that the international intelligencia/ACLU/Bush Derangement Syndrome folks might take these good faith efforts and use them to call high colestrol diets a form of torture, and tie our soldiers up in knots in a manner similar to the way the LA Police have been hamstrung after the Rodney King incident.

Posted by: wayne at November 9, 2005 09:24 PM | Permalink to this comment Permalink

Gregory: on the subject of whether "passage of a (poorly) revised McCain amendment might even make things worse than they currently are," I hope you'll find this post heldful:

http://balkin.blogspot.com/2005/10/beware-augmented-mccain-amendment.html

Posted by: Marty Lederman at November 9, 2005 10:47 PM | Permalink to this comment Permalink

I've always said I'd vote for Hillary before I'd vote for McCain...

Now?


I'd vote for Bernie "Socialist Idiot" Sanders before I'd ever vote for McCain!

Posted by: scott at November 9, 2005 11:54 PM | Permalink to this comment Permalink

The McCain amendment is horrid. Where it isn't totally ineffective or redundant, it muddies the waters. One could credibly argue that it undermines taking POWs at all since being a POW is "humiliating treatement" unto itself.

And all of you who think Bush would get any credit at all are deluding yourselves; Bush's enemies will simply refer to his actions as a cynical ploy, yada yada yada. Remember folks, they hate him. He could end world hunger, raise the dead and cure herpes and he's still going to get nothing but a ration of shit from these people.

I understand that there are many people that want the government to respond constructively to the whole "torture" issue, but that doesn't mean that we have to accept the first turd Congress drops.

:peter

Posted by: Peter Jackson at November 10, 2005 12:10 AM | Permalink to this comment Permalink

Here's some "estimable" writing from National Review, (National Review editorial, 8/24/1957, 4:7, pp. 148-9):

The central question that emerges--and it is not a parliamentary question or a question that is answered by meerely consulting a catalog of the rights of American citizens, born Equal--is whether the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically? The sobering answer is Yes--the White community is so entitled because, for the time being, it is the advanced race. It is not easy, and it is unpleasant, to adduce statistics evidencing the median cultural superiority of White over Negro: but it is fact that obtrudes, one that cannot be hidden by ever-so-busy egalitarians and anthropologists. The question, as far as the White community is concerned, is whether the claims of civilization supersede those of universal suffrage. The British believe they do, and acted accordingly, in Kenya, where the choice was dramatically one between civilization and barbarism, and elsewhere; the South, where the conflict is byno means dramatic, as in Kenya, nevertheless perceives important qualitative differences between its culture and the Negroes', and intends to assert its own.

National Review believes that the South's premises are correct. If the majority wills what is socially atavistic, then to thwart the majority may be, though undemocratic, enlightened.

Such lovely, anti-democratic sentiments. This is the kind of thinking that is borne out of minds that try to objectively qualify just what "advanced" means when the term is applied to cultures. Anyone can bend the term to whatever ends they want.

But, whatever. The blog host thinks they're "estimable".

Posted by: Ted at November 10, 2005 12:30 AM | Permalink to this comment Permalink

Oh please Ted.

If we can go back 50 years, I can find a whole bunch of stuff from Democratic Congressmen in the Congressional Record alone that would make what you pasted look as if it came from the mouth of Ghandi.

Don't waste our time.

Posted by: Peter Jackson at November 10, 2005 01:13 AM | Permalink to this comment Permalink

Another intelligent conservative with a robust conscience...

... and not a second too late! Hoorah!

Posted by: elendil at November 10, 2005 02:58 AM | Permalink to this comment Permalink

Peter Jackson:

The conduct of (Dixiecrat) Democratic Senators 50 years ago is irrelevant to whether NR is 'estimable'. Your argument is equivalent to my three-year-old's "but he did it too" defense.

Coming from an (ostensible) adult, that's pretty sad.

But thanks for playing anyway.

Posted by: what at November 10, 2005 03:08 AM | Permalink to this comment Permalink

Glenn Reynolds' "keen mind"? Pardon me while I go puke. If Glenn is what passes for a "keen mind" on the right then I guess it is no surprise that Bush is your team's intellectual hero.

Posted by: Joe at November 10, 2005 04:35 AM | Permalink to this comment Permalink

Oh please Ted.

If we can go back 50 years, I can find a whole bunch of stuff from Democratic Congressmen in the Congressional Record alone that would make what you pasted look as if it came from the mouth of Ghandi.

Yes, and I'm sure they're all still around, and in the public eye, and we're still praising them for their bigotry and racism. Well, I guess if you include Trent Lott and Strom Thurmond, some politicians still have a bit of nostalgia.

This isn't a partisan issue for me. If NR, or any other conservative or liberal propaganda outfit has a history of advocating racism, left or right, their credence shouldn't be heralded.

Posted by: Ted at November 10, 2005 07:30 AM | Permalink to this comment Permalink

Ted,

You've obviously never heard of a certain senior senator from West Virginia... Nor what a number of prominent figures in the Dem. party have said about jews.

Anyways, on substantive points, we should not be requiring miranda style treatment of all prisoners captured through various methods. When fighting a signatory to Geneva, treat them appropriately, as long as they have been abiding by it and not conducting crimes against humanity (so shooting ze germans, and especially the SS, out of hand, is good, and similar treatment would be appropriate for Serbs of the Rado Mladic/ Arkan brigades). When dealing with an international terrorist conspiracy, smacky face is a useful technique. As is manipulating them through their religious beliefs, taboos, and cultural traditions.

Being surrounded by women, being ordered around by women, not having religious accomodations, lack of sleep, being smeared with what they are told is menstrual blood, giving religiously inappropriate meals, etc are all useful ways of controlling and breaking down prisoners. They are not "torture". The entire point of an interrogation is to break someone's will, and many things that are solely psychological are called by the left and the weak right "torture".

Most prisoners should not be beaten, electrocuted, etc. But lots of these dirtbags should be in very uncomfortable places and positions. McCain amendment is a travesty and should not be passed, as it is either useless or a tool for hobbling america, just like the Church Hearings of the 70s

Posted by: hey at November 10, 2005 03:24 PM | Permalink to this comment Permalink

Can anyone answer the following questions:

1. With the Geneva Conventions already in effect: why do we need another redundant law?

2. Would the McCain amendment have prevented Abu Ghraib?

3. Do new laws stop criminals, the ones who are already set on breaking the laws?

4. Does passing a law in the USA reaffirming the Geneva Conventions we already have signed on to help us when this broadcasts the message to terrorists that when they get caught, nothing bad will happen to them?

5. Referring to question 4, isn't this entire McCain amendment just a PR stunt for the world to think we will now be immune from torture happening on our watch?

6. Referring to question 5, won't the world be disappointed and even more pissed at us when a US soldier at some point in the future violates the law and tortures someone?

I'm trying to get some real answers here because I don't see what good this amendment will actually do, especially in the long-term.

Posted by: Seixon at November 10, 2005 09:40 PM | Permalink to this comment Permalink

Senator McCain has immense moral authority to speak to the issue of POW treatment and interrogation techniques. And although likely done with the best of intentions, his proposal will result in the unnecessary and preventable deaths of both American and enemy soldiers.

Why?

The effect of Sen. McCain's amendment will be to remove the intelligence utility of prisoners, especially those taken from a determined and trained opponent. For an infantry unit in live contact with a hostile force, taking, securing, handling, and transporting away enemy prisoners is highly dangerous and exposes U.S. soldiers in close contact to enemy firepower to great risk. If these enemy personnel are of no utility, U.S. troops will learn to not unnecessarily expose themselve to mortal risk to manage them. It is very simple for an U.S. infantry unit in contact to simply kill them, a perfectly legal act to inflict on enemy personnel still "resisting."

Of course, once the enemy side figures this out, they in turn will have no incentive to attempt to surrender when in contact with Americans. Their best choice will be to resist to the death, making for a more tenacious and lethal fight for U.S. troops.

Thus, both sides end up with greater, and unnecessary, casualties as a result of Sen. McCain's proposal.

We propose allowing U.S. interrogators to use on enemy prisoners any type of training technique or environment U.S. troops must endure during their training. Thus USMC boot camp harassment, cold and hot conditions, sleep and food deprivation, and mental stress would all be permitted. These techniques are neither injurious nor lethal, but can be stressful. Torture, beatings, and any other action not permitted in U.S. military training would be out.

A determined and trained enemy will eventually adapt to this state of affairs, and the utility of prisoners would eventually dry up. But at least it would provide some incentives for awhile for both sides in a conflict. Much better, and more humane in its own way, than Sen. McCain's "hotel and room service" standard.

Beware of the unintended consequences of your virtue.

Westhawk

Posted by: westhawk at November 10, 2005 11:06 PM | Permalink to this comment Permalink

I'll take a shot, Seixon:

1. The GC are not being applied to several classes of prisoner currently in custody. Thus, McCain is not redundant.

2. Yes it would have. The soldiers there would have been told that whatever MI people told them to the contrary, they were not allowed to go outside their previous GC/field manual training. The central cause of AG was the replacement of their training with an almost-anything-goes attitude. (I know the JAG officer who gave these individuals GC training, and he's a very careful and upright fellow. They disregarded his training because they were later told that it didn't apply.)

3. Sometimes new laws stop criminals, especially those who think their violations are minor, mere technicalities, or sanctioned. Although this has quite likely been corrected by now for people subject to the UCMJ -- because a number have been charged, convicted, and sentenced to real time -- folks at Other Government Agencies may well not have gotten word. In fact, they may not think they are breaking the law. A new law that closes the loophole, and communicates seriousness, may well have an impact.

4. Terrorists are going to be deterred by fear of torture. This is a meaningless point. All knowlegde that we torture does is give greater incentive to compartmentalize knowledge, and spread disinformation through the ranks. Then even if a prisoner tells everything he knows, it's not much, and half of it is wrong. In a more important vein, this war is not only a military struggle, but an ideological one. Torture hurts us in the latter, renouncing it helps us.

5. I think it may be more PR stunt than real, especially given the Graham Amendment that passed today which cuts off judicial review of even innocent prisoners' claims. Still, you can expect that word of this will get to people on the front lines, and they'll maybe follow their pre-9/11 training on how to deal with captives. We're all better off for that.

6. What the world is pissed about is not that some soldier broke the law, but at the appearance that the lawbreaking had official sanction. I understand that this is denied, but the denials are widely disbelieved. This reaction is not unreasonable, given the torture memos, and tortured interpretations from the higher-ups, and explicit defenses from the lower-downs. Remove/minimize the appearance of official imprimatur, and you've scored a fairly large moral victory.

Westhawk, that's an interesting observation, and would apply more if the people taken prisoner were actually captured as part of combat. I suppose many are. A great many of the people in Guantanamo, for example, were not captured by US forces, and were not even captured in Afghanistan. They were captured by Pakistani authorities at roadblocks, in sweeps, and the like, and turned over to US authorities, unarmed, bound, gagged, black and blue. You think our guys are just going to shoot them? You have a much lower opinion of them than I do. I also think that you can get plenty of good intelligence from people without torture or abuse. You also fail to account for the excess death caused by family/clan/tribe members seeking revenge for the ill treatment of a relative. All the people we have captured are going to be free some day. All of them. What do you want them to think? That we were tough but fair? If you've ever met a German held POW by the US you'd know what I mean.

Posted by: CharleyCarp at November 11, 2005 04:24 AM | Permalink to this comment Permalink

4 Terrorists are NOT going to be deterred . . .

Posted by: CharleyCarp at November 11, 2005 04:26 AM | Permalink to this comment Permalink

The apologists for torture are at once interesting, amusing and sad. Earnest as they want to appear, they are empty moral relativists. No fixed principles, willing to sell out the essence of what it means to be American -- just as Bush, Cheney, Rumsfeld and the craven military leadership who passed their torture orders down the chain.

All of them committed war crimes as defined by the precedents set at the Nuremberg Trials of 1946. They will never be put on trial for their crimes, but no matter: Criminals they are.

Aside from the morality -- God forbid we should discuss morality in the presence of Republicans -- torture is not effective in combat. The most it will do is intimidate civilians for a while. In wartime, however, torturers are frustrated losers. The United States prevailed in WW2 without resorting to torture as a standard operating procedure. When Rumsfeld ordereed torture, he signaled an essential lack of faith in his country.

Back when the U.S. Marine Corps was in the business of winning wars, here's how they interrogated prisoners. Oh, and lest anyone forget, the Japanese made al-Qaeda look like a suburban Cub Scout pack.

http://mysite.verizon.net/vze6kt7j/sitebuildercontent/sitebuilderfiles/aamitcsm.pdf

Posted by: Wilson Kolb at November 11, 2005 09:19 AM | Permalink to this comment Permalink

What do you want them to think? That we were tough but fair? If you've ever met a German held POW by the US you'd know what I mean.

My father was such a person. He was held in both French and American POW camps. No picnic: pictures of him after release show someone astoundingly gaunt. But his only complaint is that his capture wasn't reported to the Red Cross for six months (which meant that for a time his mother didn't know if any of her sons - all missing - were alive).

Conditions were bad in one camp for a time. He puts it down to corrupt leadership, not the troops who physically did the deeds. After a higher officer visited the camp, saw what was happening, and replaced the camp commander with someone who declared that his camp would be run by the rules, things went back to being tough but fair. You can imagine what he thinks of the current chain of command.

As is the case today, those in POW camps were a mixture of followers of an evil ideology and ordinary folk swept up in events. 20-25 years after the war, my parents and I (by then all American citizens) went back to Germany. On one trip, we stayed in a tiny village. We were treated as representatives of the best nation in the world. The mayor came to greet us, made a little speech. Made quite an impression on a young boy.

I know, I know: different wars, different cultures. There was never a prospect that my son would visit Tikrit and hear the mayor make a laudatory speech about America. But there's an element in this country that thinks making enemies is a good thing, a sign of strength. I think they're being self-indulgent bullies.

Posted by: brianm at November 13, 2005 05:34 PM | Permalink to this comment Permalink
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