Tuesday, November 15, 2005

McCain suicide pact

Andy McCarthy, the Corner's in-house legal guru, eviscerates the proposed McCain Amendment which seeks to ban any use of force, coercion and intimidation in prisoner interrogation. McCarthy calls it two parts grandstanding, one part suicide.

...Superior force and discipline are not enough against this [terrorist] adversary. We need intelligence. Intelligence is the single asset that stands between the terrorist and scores — if not more — of slaughtered civilians. Between the terrorist and murdered American military personnel. In the war on terror, as in no war before it, intelligence will be the difference between victory and defeat.

And if Senator John McCain has his way, the most urgently needed intelligence will be lost.
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.
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.

Obviously, in the vast majority of circumstances, this provision of the McCain Amendment is also gratuitous moralizing. In general, though we are at war with terrorists against whom intelligence is our only defense, the military does not resort to forcible methods. To the contrary, gushing respect is our customary response to savagery, complete with halal meals, prayer rugs, and literally white-glove treatment for government-issued Korans (even if the prisoners proceed to use them for stuffing toilets and passing secret messages).

But there are certain circumstances in which high-level al Qaeda operatives are captured in the throes of plotting massive strikes. There are certain circumstances in which such a terrorist might be able to tell us, right now, where bin Laden is, or Zarqawi, Zawahiri, and other leaders who are themselves weapons of mass destruction because they have the wherewithal to command massive strikes.

Understand: If we were to learn where one of those men was, we would attack that target and kill him, and we'd make no apologies for it. By the McCain logic, the killing is fine but the infliction on a terrorist of non-lethal discomfort to obtain the intelligence necessary to do the killing should subject the inflictor to prosecution. That's absurd.

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