Part 1 of a series on the McCain amendment regarding treatment of detainees.

Overview of series

Ever since the first pictures from Abu Ghraib were published, the issue of torture has been widely discussed. Recent events, however, have really brought it into focus. At the heart of the matter is the attempt led by Sen. John McCain to pass legislation which prohibit the use of cruel, inhuman, and degrading treatment of U.S. government detainees. This post will examine the views of McCain and others in Congress, active and retired military personnel, and the Bush administration. As will be shown in this series, the Senate and military personnel are overwhelmingly in support of the legislation while the Bush administration has been actively trying to defeat it.

I am not going to focus on definitions of "torture." I am really not going to focus on the ethics or lack thereof concerning torture. I am going to try to look at practical considerations that exist regardless of whether torture is right or wrong or ever justifiable.

The proposed legislation and its procedural history

• The origins of the proposed legislation
  

The provision was proposed in the Senate by McCain, Lindsay Graham of South Carolina, and John Warner of Virginia. They began working on the matter this past summer (see this June 30 article from The Hill). All three are Republicans. All three supported the Iraq war. All three served in the military. McCain's story as a Navy pilot in Vietnam who spent over five years in captivity is well known. Graham was an Air Force lawyer for six-and-a-half years and is still serving in the Air Force Reserve. Warner served in the Navy during WW II and in the Marines during the Korean War, was also Secretary of the Navy, and is currently Chairman of the Senate Armed Services Committee. So, the anti-torture legislation originated with a former POW who knows firsthand about torture, an Air Force veteran who was a military lawyer, and a WW II and Korean War veteran who was also a Pentagon official in charge of the Navy. Keep that in mind.

• The Bush administration's immediate response--opposition
  

As soon as the intentions of these three Senators became known, the Bush administration expressed its opposition. Word had it that the anti-torture proposal would be attached as an amendment to the to the Defense Department Appropriations Bill for fiscal year 2006. On July 21, 2005, the White House delivered a position paper to Congress which said that Bush would be advised to veto the bill "if legislation is presented that would restrict the President's authority to protect Americans effectively from terrorist attack and bring terrorists to justice."
NOTE: I have been unable to find a copy of this position paper. I thought it would be on the White House website, but it seems I was wrong.

Scotty Boy McClellan was asked about this veto threat in his press briefing of July 25, 2005:

We did put out a position paper that is available for you to look at, talking about some of our concerns when it comes to the defense authorization bill that the Senate is moving forward on. We certainly would have concerns if there are amendments that some people seek that would interfere with the President's ability to effectively conduct the global war on terrorism. And there are some amendments that people have suggested that we believe might be unnecessary or duplicative. We want to make sure that there is nothing that restricts the President's authority to be able to do what he needs to do to protect the American people and prevent attacks from happening in the first place, and bring to justice those who seek to murder innocent civilians.

Before Scotty made these comments, Vice President Big Dick Cheney was meeting with Senators, trying to convince them not to go forward on this matter. As first reported by the Washington Post on July 23,

Vice President Cheney met Thursday evening with three senior Republican members of the Senate Armed Services Committee (Warner, McCain, and Graham) to press the administration's case that legislation on these matters would usurp the president's authority and -- in the words of a White House official -- interfere with his ability "to protect Americans effectively from terrorist attack."

It was the second time that Cheney has met with Senate members to tamp down what the White House views as an incipient Republican rebellion. The lawmakers have publicly expressed frustration about what they consider to be the administration's failure to hold any senior military officials responsible for notorious detainee abuse in Iraq and the U.S. military prison at Guantanamo Bay, Cuba.

• The provision is drafted and voted on by the Senate.
  

In spite of Cheney's charm and the threat of a veto, the three Senators did move forward, and eventually McCain introduced an amendment to the to the Defense Department Appropriations Bill. According to an official statement by McCain, the legislation

would (1) establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees and (2) prohibit cruel, inhuman, and degrading treatment of persons in the detention of the U.S. government.

In the same statement, McCain summarized both parts of the proposed amendment.

The first part of this amendment would establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees. The Army Field Manual and its various editions have served America well, through wars against both regular and irregular foes. It embodies the values Americans have embraced for generations, while preserving the ability of our interrogators to extract critical intelligence from ruthless foes. Never has this been more important than today, in the midst of the war on terror.

This amendment would establish the Army Field Manual as the standard for interrogation of all detainees held in DOD custody. The Manual has been developed by the Executive Branch for its own uses, and a new edition, written to take into account the needs of the war on terror and with a new classified annex, is due to be issued soon. My amendment would not set the Field Manual in stone – it could be changed at any time.

********

The second part of this amendment is a prohibition against cruel, inhumane, and degrading treatment. If that doesn’t sound new, that’s because it’s not – the prohibition has been a longstanding principle in both law and policy in the United States. To mention just a few examples, this prohibition is contained in the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights, to which the U.S. is a signatory; and the binding Convention Against Torture, negotiated by the Reagan administration and ratified by the Senate.

Nevertheless, the administration has held that the prohibition does not legally apply to foreigners held overseas. They can, apparently, be treated inhumanely. This means that America is the only country in the world that asserts a legal right to engage in cruel and inhumane treatment. What this also means is that confusion about the rules becomes rampant again. With this simple amendment, we can restore clarity on a simple and fundamental question: Does America treat people inhumanely? My answer is no, and from all I’ve seen, America’s answer has always been no.

(emphasis added).

On the morning of October 5, 2005, Scotty Boy McClellan reiterated the possibility of a veto in his press briefing:

Q: And will the President veto Senator McCain's legislation?

MR. McCLELLAN: Well, we put out the statement of administration policy, which stated our concerns about that and stated -- let me specifically refer you to it -- our views when it came to if those amendments were part of the final legislation. It said, if it's presented, then there would be a recommendation of a veto, I believe.

Inspite of this repeated threat, the Senate later that day voted 90-9 in favor of the amendment.

• The Bush administration turns its efforts to the House.
  

After the Senate vote, Big Dick Cheney began lobbying Senators to graft onto the McCain amendment an exception (which is to say exclusion) for the CIA. When this effort failed, Cheney turned his attention to the House. This time he, along with Bush his ownself, met with some success--at least according to acting Majority Leader Roy Blunt, who told the Washington Post a month ago that "It's fair to say the White House has made the case -- both the president and the vice president -- that the McCain amendment is harmful." A major proponent of the McCain amendment in the House is Jack Murtha (the very hawkish, pro-war Democrat from Pennsylvania who recently became a very outspoken critic of Bush's policy--or the lack thereof). Oh, by the way, Murtha served 37 years in the Marines and saw combat duty in Vietnam. According to a November 9 article from USA Today, Murtha

wrote in a letter to House colleagues that revelations about abuses of prisoners in U.S. custody are "degrading our society and its political and legal systems." He says he has the votes — including some Republicans — to win House approval of McCain's amendment.

• Current status
  

Initially, the GOP leaders in the House were opposed to including the amendment as part of a spending bill. The current House version of the Defense Appropriations Bill does not contain the McCain Amendment or anything like it. Since the House and Senate versions of the overall bill are different, the matter will be resolved in a Conference Committee. However, that does not necessarily mean a resolution is imminent. As of November 7, Speaker Hastert had not appointed any House conferees, meaning that as of that date, negotiations had not even started. Warren Strobel and James Kuhnhenn of Knight-Ridder (use previous link) reported that "Republican House leaders appear to be holding up the Pentagon spending bill so that they can attach an across-the board spending cut to it."

By early December this had apparently changed, as news reports spoke of negotiations between the House and Senate. Some of those same reports described other negotiations as well. National Security Adviser Stephen Hadley has had discussions with McCain. Regarding those meetings, Hadley said on "Fox News Sunday" on December 4 that

We are working hard in good faith on both sides to come up with an approach that can be supported by the president and the Congress to both find a way to be aggressive in the War on Terror and still comply with U.S. law. We're working it. We're not there yet.

Meanwhile, McCain was appearing on "Meet the Press" the same morning. After saying that he would not compromise on the ban against cruel, inhumane and degrading treatment, McCain described his discussions with Hadley:

Well, we're in discussions about other aspects of this to try to get an agreement, and frankly, I'd like to wait until we see whether those discussions are successful or not. I have great respect for Steve Hadley and we've had some very frank and open discussions on this.

According to a December 7, 2005, New York Times article,

The White House has all but abandoned its effort to persuade Senator John McCain to exempt Central Intelligence Agency employees from legislation barring inhumane or degrading treatment of prisoners in American custody.

*******

Mr. Hadley has now retreated to seeking narrower language that could make it harder to prosecute intelligence officers charged with violating torture standards.

The same article said that

Mr. McCain is balking at agreeing to any kind of exemption for intelligence officials, members of his staff say. Instead, he has offered to include some language, modeled after military standards, under which soldiers can provide a defense if a "reasonable" person could have concluded that he or she was following a lawful order about how to treat prisoners. The senator's offer was first reported Saturday by The Wall Street Journal.

On December 12, 2005, Bush was interviewed by Brian Williams of NBC, and George shared the following thoughts on the McCain amendment:

Williams: Can we talk about torture for a moment? The United States right now is locked in talks. And they're going on in Washington. Why can't the United States be definitively against torture, the current definition they're talking about?

President Bush: Yeah, we will be. We are and we will be at home and abroad. And we're working through this issue with members of the House and the Senate. There's a reconciliation process going, or a, you know, coming together of minds, I guess is the best way to put it. And we want to see it happened. And we're working with both Senator McCain and Congressman Duncan Hunter.

Williams: Can you meet John McCain at his definition?

President Bush: Yes, I'm confident we can. On the other hand, we want to make sure that we're in a position to be able to interrogate without torture. These are people that still want to hurt us, Brian. And the American people expect us to do that which we can do within international law and our own declaration of supporting the premises of international law is what I really meant to say -- to protect us. I mean, if they know something, we need to know it. And we think we can find it without torturing people.

And so why oppose the McCain amendment in the first place?

And speaking of Congressman Hunter, he is one of the negotiators for the House. The December 7 New York Times article stated that "four top House and Senate negotiators", met on December 6 "to hammer out a military budget bill in conference committee," and the talks included the McCain amendment. "Hunter, a California Republican who heads the House Armed Services Committee, told reporters earlier in the day, 'We think we're going to have a good outcome for all parties.'"

Others are not as optimistic. As the New York Times reported on December 13, Bill Frist declared on December 12 that "work on the military budget and policy measure had been finished and could be voted on by midweek." If that is true, someone should tell Senator Carl Levin of Michigan, because he had a slightly different opinion. In response to Frist's comments, Levin said

"I think it represents a statement of hope and wish, and that we're fairly close. But as far as I know, it's not accurate."

Mr. Levin also said he believed that the House so far had refused to accept the McCain language.

"My understanding is that the House will not accept the McCain amendment as it was written in the Senate, that they want to change it in a significant way," Mr. Levin said. "And that's unacceptable to us."

So what will happen now?

Something just happened!

At 1:30 a.m., I was on the Reuters website, and next to the "Latest News" line was the statement "House backs torture ban." The opening of the article reads as follows:

The House of Representatives on Wednesday gave overwhelming support to a measure requiring the humane treatment of prisoners in U.S. custody, piling pressure on President George W. Bush to agree to put into law a ban on the torture of detainees.

The House voted 308-122 to instruct negotiators working on a final version of a defense spending bill to accept an amendment pushed by Arizona Republican Sen. John McCain that would bar the cruel, inhuman or degrading treatment of military prisoners.

Although the House motion was not binding, it should boost the clout of McCain, who was locked in talks with the White House on a final version of his amendment.

Well, this changes my approach to the rest of this series a bit...

There has still been no vote in the House on the Defense Appropriations Bill, meaning there has been no "up or down" vote in the House on the McCain amendment, but this is damn close, and it not good for George and the gang.