Part 5 of a series on the McCain amendment

Overview

Part 5 examines the reasons given by the Bush administration for its opposition to the McCain amendment. When considering these reasons, keep in mind Part 2 (which discussed the views of former military commanders who supported the McCain amendment), Part 3 (discussing the fact that torture and "enhanced" interrogation produces unreliable information), and Part 4 (discussing the need for a better image and the damage done to our image by opposing the McCain amendment). The Bush administration's reasons for opposing the statutory ban on torture and inhuman treatment were: 1) the McCain amendment was unnecessary because it would be duplicative of existing law; 2) the McCain amendment was unnecessary because we do not torture; 3) "enhanced techniques" produced good results and were needed for the future; and 4) the McCain amendment was a limitation on the power of the President.

Reason 1: the McCain amendment was duplicative of existing law

• Reason 1 as stated by Scotty Boy
  

Back on July 25, 2005, in the early stages of this process, Scotty Boy said the following at his press briefing: "And there are some amendments that people have suggested that we believe might be unnecessary or duplicative." When asked on October 5, 2005, why the President opposed the McCain amendment, Scotty gave this answer: "Well, there are already laws on the books, and so I think part of this, if you go back and look at the statement of administration policy that we put out, it would be unnecessary and duplicative."

Man, this is one weak-ass reason.

• Initial analysis
  

If there were indeed laws on the books that did the same thing that the McCain amendment would do, why would it be harmful to have another law to the same effect? The answer is there would be no harm. Furthermore, even if the McCain amendment was duplicative, a new statement by the U.S. government that it will not engage in cruel and inhuman treatment would clarify and emphasize the fact for the rest of the world, which would help our image (see Part 4).

Moreover, if the McCain amendment was actually duplicative, why did McCain, joined by Lindsay Graham and John Warner (see Part 1), lead the effort to have it approved by the Senate? Why did Colin Powell say it was needed? Why did so many former generals and admirals say it was needed?

• Some of the existing U.S. laws
  

By the way, I have yet to find any statement by Bush, Scotty Boy, Big Dick Cheney, or anyone else in the Bush administration specifically identifying these existing laws. Since they did not take the time to cite them, I will cite some of them now.

Title 18 of the U.S. Code is entitled "Crimes and Criminal Procedure." Chapter 113C thereof covers torture. 18 U.S.C. § 2340A (a) makes torture a crime punishable by up to 20 years in prison, and, if death occurs, by life imprisonment or the death penalty. However, this provision applies only to torture committed (or attempted) outside the United States. Remember that.

18 U.S.C. § 2340 defines "torture" as follows:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501 (2) of title 49.

• The McCain amendment

In comparison, the second section of the McCain amendment, which applies to persons in the custody of the U.S. government, says "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." That section goes on to say that "cruel, inhuman, or degrading treatment or punishment" is defined in part by the United Nations Convention Against Torture (CAT). Article 1 of the CAT says the following:

the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

It appears that I have no choice but to say that it seems that Scotty Boy was right. Section 2340 seems to be very similar to the McCain amendment and the CAT. There is, however, one major difference. Recall that while § 2340 defines "torture," § 2340A holds that there is no crime of torture unless it happens outside the U.S. The McCain amendment prohibits torture and cruel and inhuman treatment regardless of where it happens. The means that the existing law was not duplicative in terms of its application.

• And what if I am wrong and Scotty is totally right?
  

Go back and read the first paragraph of the Initial Analysis above. Enough said.

Reason 2: We do not torture.

• George and Scotty Boy are emphatic.
  

While in Panama on November 7, 2005, George his ownself declared

We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.

(emphasis added). The next day Scotty Boy said the same thing over and over and over...

Q: Can you give me a straight answer for once?

MR. McCLELLAN: Let me give it to you, just like the President has. We do not torture. He does not condone torture and he would never --

Q: I'm asking about exemptions.

MR. McCLELLAN: Let me respond. And he would never authorize the use of torture. We have an obligation to do all that we can to protect the American people.

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MR. McCLELLAN: We are going to do what is necessary to protect the American people.

Q: Is that the answer?

MR. McCLELLAN: We are also going to do so in a way that adheres to our laws and to our values. We have made that very clear. The President directed everybody within this government that we do not engage in torture. We will not torture. He made that very clear.

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MR. McCLELLAN: -- the President has already made it clear that we do not torture and we do not tolerate torture.

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MR. McCLELLAN: The President has made it very clear that we do not torture.

I'm confused...If we do not torture, and everything we do is within the law, what is the problem with having a new law which makes that fact explicitly clear?

Perhaps the answer is that the McCain amendment prohibits more than what the Bush administration considers "torture." Why else would a reason for opposing the McCain amendment be that we do not engage in or condone torture?

• Techniques that have been used

ABC News published a report which listed and explained some of the "enhanced" interrogation techniques that the U.S. has been using.

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

The Washington Post's editorial of November 23, 2005, posed an interesting question regarding the use of these techniques.

Are these techniques "not torture," as Mr. Goss (CIA Director) claims? In fact, several of them have been practiced by repressive regimes around the world, and they once were routinely condemned by the State Department in its annual human rights reports. By insisting that they are not torture, Mr. Goss sets a new standard -- both for the treatment of detainees by other governments and for the handling of captive Americans. If an American pilot is captured in the Middle East, then beaten, held naked in a cold cell and subjected to simulated drowning, will Mr. Goss say that he has not been tortured?

(emphasis added). I would like to know the answer, particularly in light of the definition of torture pursuant to the CAT.

Of these techniques, I will discuss one--water boarding. Andrew Sullivan has been all over the torture issue, and his site is one of the best for news, sources, and detailed analysis on the issue. I particularly like a post he wrote about a Wall Street Journal editorial which basically said that waterboarding--among other things--is acceptable and not "anything close" to torture. Sullivan points out that the main main of the Spanish Inquisition, Torquemada, did consider waterboarding to be be torture. In fact, Torquemada would use waterboarding when The Rack proved ineffective. Now try and argue that waterboarding is not torture.

Reason 3: The McCain amendment would prohibit techniques that produced good results and are needed for the future.

• Initial analysis
  

Think about this one for a moment. What the Bush administration was saying was that while we don't use or condone torture, we have used techniques that would be considered cruel and inhuman under the McCain amendment and we want to be able to use them in the future. If I am wrong about this, then why would anyone oppose the McCain amendment? If I am wrong about this, then the McCain amendment would allow the use of these same techniques, meaning there would be no reason to oppose it. However, as shown, the McCain amendment would prohibit the enhanced techniques described above--the same techniques that have been used already.

This is like potentially entering into a contract with someone, but that someone says "I won't breach the contract, but I want the option to do so." Would you enter into a contract with this person? If your answer is "no," then why would you believe McClellan or Bush when they claim that we do not torture?

• A concise statement of an argument for--and against--enhanced techniques

The November 21, 2005, issue of Newsweek has an article, "The Debate Over Torture," which sums up the argument for the continued use of the enhanced techniques:

Less violent but still coercive techniques can sometimes be effective. These "enhanced" interrogation techniques, like placing a smelly hood over a prisoner and making him stand or squat naked for hours in a cold and dark room, are called "torture lite." In modern times, these tactics have been used by British intelligence to unravel the command structure of the IRA and by the Israelis to stop Palestinian suicide bombers.

Since 9/11, torture lite has been used by the Americans in the war on terror...

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Torture lite has been a sparingly used but essential tool, says a senior Bush aide who spoke anonymously because of the classified nature of the subject. "We're talking about the most successful intelligence gained in the war on terror coming from these programs," he says. Details are hard to come by, but Sen. Kit Bond, a member of the Senate intelligence committee, told NEWSWEEK that "enhanced interrogation techniques" worked with at least one high-level Qaeda operative, 9/11 mastermind Khalid Shaikh Mohammed, to thwart a plot. Bond would not say which one, but among foiled plots vaguely described by the White House and linked to "KSM" was a scheme to attack targets on the West Coast of the United States with hijacked airlines. The planning for such a "second wave" attack may have been in the early stages...The White House suggests the intelligence obtained has less to do with people and plots and more to do with the structure of Al Qaeda. Because of "the program," as they somewhat spookily describe the CIA's "aggressive interrogation techniques," White House aides say that the United States has a much better idea how Al Qaeda operates around the world.

The same article also contains part of the case against the use of enhanced techniques.

A career CIA official involved with interrogation policy cautioned NEWSWEEK not to put too much credence in such claims. "Whatever briefing they got was probably not truthful," said the official, who did not wish to be identified discussing sensitive matters. "And there's no way of knowing whether what good information they got could not have been obtained by more traditional means."

Thus, while there is no way at this point to know whether this unidentified CIA official is correct, there is also no way at this point to know whether the unidentified senior Bush aid and Bond (Kit Bond) are correct. However, given the lack of veracity the Bush administration has shown on this issue (and damn near every other issue), I ask again why should anyone believe the Bush administration?

• A strong counter-argument to Reason 3
  

John McCain described this counter-argument in his statement on the Senate floor on November 4, 2005:

I’d note for my colleagues’ consideration that the State of Israel, no stranger to terrorist attacks, has declared cruel, inhumane and degrading treatment illegal. In 1999 the Israeli Supreme Court issued a unanimous decision to this effect that contained words we may wish to reflect on today. “A democratic, freedom-loving society,” the court wrote, “does not accept that investigators use any means for the purpose of uncovering the truth. The rules pertaining to investigations are important to a democratic state. They reflect its character.”

The Israeli position was discussed further in a November 17, 2005, L.A. Times editorial:

The 23-page 1999 ruling requires Israeli interrogators to use only the methods on terrorism suspects that police are permitted to use on ordinary suspects: "The asking of questions that seek to elicit truthful answers."

Rather than defining torture, the ruling forbade the use of physical means in interrogation and banned "borderline" methods that Israeli interrogators once routinely used: forcing a suspect to crouch on the tips of his toes, playing loud music and using hoods that cover a detainee's entire head, even if it is ventilated to allow breathing. The ruling also banned sleep deprivation for the purpose of "breaking" a suspect.

The ruling was the culmination of a long, wrenching process for Israeli society in which Israeli authorities and the public came to disavow torture. It began in 1984 when, after years of ignoring complaints by Palestinians about torture and abuse, a national commission of inquiry was formed following the killing of a Palestinian terrorist by GSS interrogators, who then lied about the death. The commission's report, submitted in 1987, sanctioned the use of physical duress, explaining that sometimes--after psychological methods have been exhausted--"a moderate measure of physical pressure cannot be avoided" when interrogating a terrorism suspect who is believed to have knowledge of an imminent danger to the public. Only in such "ticking time bomb" scenarios were interrogators permitted to shake a detainee's upper torso.

Shortly after the report was published, the first Palestinian uprising erupted and thousands were detained and interrogated. Mounting complaints of abuse indicated that GSS interrogators were using the disallowed methods and abusing the flexibility granted them under the "ticking time bomb" exemption. One detainee was shaken to death, and many others--some of them political activists who were released without charges--appealed their treatment to the Supreme Court. Barak and his colleagues examined the legality of each of the techniques routinely used by the GSS and banned them, including in "ticking bomb" situations.

Wow. The Israelis--who live with the reality of terrorism on a daily basis--determined that "enhanced techniques" would not be used. And Israel reached that decision after years of experience. These facts do not disprove Reason 3, but it certainly raises serious doubts about its credibility.

Reason 4: the McCain amendment would limit the President's power.

On July 25, 2005, Scotty Boy said one of the reasons for Bush's opposition to the McCain amendment was that it was duplicative, and then he said

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.

(emphasis added). Scotty Boy's "duplicative" claim on October 5, 2005, appears above, but it is worth reprinting--and adding what he said immediately following that claim:

Well, there are already laws on the books, and so I think part of this, if you go back and look at the statement of administration policy that we put out, it would be unnecessary and duplicative. And it would limit the President's ability as Commander-in-Chief to effectively carry out the war on terrorism.

(emphasis added). Now think about this one for more than one moment. If the McCain amendment was truly duplicative and thus unnecessary, how could it limit the President's power in any way other than that already imposed by those existing laws? Scotty Boy--as usual--was making no sense at all. The McCain amendment applies only to the treatment of U.S. detainees. It does not affect in any way the President's authority in anything else. That means that if the McCain amendment would limit the President's power, then Bush was complaining that it would limit his power to order torture and cruel and inhuman treatment. You know--the stuff that he said he does not condone.

Everyone should understand that when McClellan speaks about not limiting the President's power, he is talking about a lot more than enhanced interrogation techniques. Indeed, he is talking about giving Bush unlimited and unchecked power in any matter which could be connected in any way to the war on terror. The Bush administration has taken this position ever since 9-11. The position was expressed recently (December 20, 2005) by Big Dick Cheney:

...I do believe that, especially in the day and age we live in, the nature of the threats we face, it was true during the Cold War, as well as I think what is true now, the President of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy.

In other words, Big Dick and the Bush administration believe that Bush should be allowed to do whatever he wants and not have to answer to anybody.

Conclusion

Reason 1 is outright bullshit.

Reason 2 is false. When we have approved and engaged in a technique that the top torturer of the Spanish Inquisition said was torture and harsher than The Rack, the only way you can argue that waterboarding is not torture is to utilize twisted bullshit definitions--which is exactly what the Bush administration has done. As for the Wall Street Journal editorial board saying that waterboarding is not "anything close" to torture, those assholes need to stick to business issues.

Reason 3 is the only possibly credible argument in favor of the enhanced techniques. However, proponents cannot show that the use of such techniques was the only way that the information they claim was procured could have been procured. Moreover, it is difficult to understand why these techniques are needed in the future when even Israel won't use them.

Reason 4 is just scary bullshit. When Reason 4 is evaluated in light of the weakness of Reasons 1 and 2, it is clear that the Bush administration opposed the McCain amendment because it would limit Bush's authority to order the use of the enhanced techniques. In other words, Bush wants the authority to order the use of techniques that are cruel and inhuman. What is really scary are the facts that the Bush administration thinks the President automatically has this power AND that the President does not have to answer to anyone regarding this power.

Checks and balances? Anyone? Bueller?

As I said, Bush's desire for this kind of power is not limited to interrogation techniques. There is so much to say about this subject, but for now I will refer to and quote an editorial by Steve Chapman of the Chicago Tribune published on December 25, 2005:

President Bush is a bundle of paradoxes. He thinks the scope of the federal government should be limited but the powers of the president should not. He wants judges to interpret the Constitution as the framers did, but doesn't think he should be constrained by their intentions.

He attacked Al Gore for trusting government instead of the people, but he insists anyone who wants to defeat terrorism must put absolute faith in the man at the helm of government.

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But the theory boils down to a consistent and self-serving formula: What's good for George W. Bush is good for America, and anything that weakens his power weakens the nation. To call this an imperial presidency is unfair to emperors.

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What we have now is not a robust executive but a reckless one. At times like this, it's apparent that Cheney and Bush want more power not because they need it to protect the nation, but because they want more power. Another paradox: In their conduct of the war on terror, they expect our trust, but they can't be bothered to earn it.

And to close on another pop culture note, Chapman's "unfair to emperors" comment could be a line in a new movie--"A Mullet called George."