Tuesday, November 29, 2005

McCarthy on McCain II -- MUST READ

Andy McCarthy, former A-USA and the National Review's resident legal eagle, brilliantly dissected McCain here. Yesterday he came around for a devastating round two.

The Geneva Convention standards for respectful treatment of honorable prisoners of war are rooted not merely in our ideals but in practical considerations of comity. Yet McCain concedes that al Qaeda's butchers will continue to torture and kill prisoners no matter how we treat ours. Alerting them — as the media glare of his legislation would do — that they had nothing to fear from U.S. captivity would not just cut off an essential intelligence pipeline but reward their savagery, guaranteeing more of it.

McCain counters that this would be worth enduring for the cumulative benefit we stand to gain from so shining an example of decency. "Our commitment to basic humanitarian values," he writes, "affects — in part — the willingness of other nations to do the same." The point, however pleasantly reassuring, is meritless.

...How we treat unlawful enemy combatants, as McCain knows, has utterly nothing to do with how we treat, and would treat, the soldiers (i.e., the lawful privileged combatants) of enemy nations who have executed and abide by Geneva. We honor those commitments in Iraq (where violators have been aggressively prosecuted). We honored them in Vietnam, even though we knew our brave fighting men, like McCain, were not reciprocally honored upon capture. And we would honor them in a war against any of the nations McCain is talking about.

With those nations, moreover, intelligence is not of the same premium as it is in a war against a transnational terror network. Other nations can be put in fear of having their territory seized, their regimes overthrown, their economies shredded by sanctions and blockades, etc. You can afford to forego what you might learn from grilling their soldiers. To the contrary, the only weapon you have against terrorists is knowledge of where they might strike next so you can stop them, and knowledge of where they are so you can kill or capture them. With terrorists, intelligence is the whole ballgame.

McCain also posits a tiresome bromide so easily discredited that no serious person is swayed by it — including McCain himself, as (we shall see) the balance of his essay demonstrates. It is the claim that there is no upside to coercion because its fruits are inherently unreliable...

In point of fact, many strategies for culling information, which we readily accept as staples of competent, everyday intelligence gathering, unavoidably incentivize the informant to tell his inquisitor what he wants to hear.
Despite the rich opportunity (perhaps even the likelihood) that these scenarios, and others, present for self-interested lying, we do not systematically deny ourselves access to the resulting information. Rather, we trust our ability to hear the information, determine whether it makes internal sense, test how it matches up against other things we know, and factor in the motives to falsify. Sometimes, predictably, the stories turn out to be as bogus as McCain's Packer linemen. Very often, however, some or all of the information turns out to be true, and salient.
There is, of course, no greater value for government than the security of the governed. [Amen.] Government is not there to teach us morality lessons. Government is there, first and foremost, to protect us. In the struggle against Islamic terrorism, that means getting the intelligence if there is reason to believe a plot is afoot to kill massively.

Senator McCain well knows this. That's why the most telling part of his essay is his wholly dissatisfying answer to the so-called ticking-time-bomb scenario. Yes, he admits, "if we capture a terrorist who we have sound reasons to believe possesses specific knowledge of an imminent terrorist attack ... an interrogator might well try extreme measures to extract information that could save lives."

So what's McCain's answer to the ticking-bomb dilemma? It is: Let's make such "extreme measures" illegal, but in the full expectation that the law would be broken with impunity. As he puts it: "Should [an interrogator engage in coercion,] and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted." They would opt, in other words, not to prosecute.
On one hand, it conveys the nod-and-a-wink message that the law is not serious: If the circumstances seem grim enough, go ahead and abuse the captive and we're likely to look the other way. It announces that the president, because he wields ultimate prosecutorial authority, is effectively above the law — precisely the notion Congress is supposed to be defeating when it enacts behavioral standards for executive-branch agencies.

On the other hand, it is craven. It leaves the decision whether to violate a foolish proscription that cannot be justified in a crisis to the judgment of a lowly, young interrogator. "Our lives are in your hands, son, so do what you think is right — and, if things work out well, maybe, just maybe, we'll let you slide" — at least if you're lucky enough to have your actions come to light on that rare day when we're feeling feisty enough to face down Amnesty International, Human Rights Watch, the ACLU, the New York Times and that pesky Arab Street.

Most of all, though, McCain's answer is perverse. It would be reprehensible to convert into an illegality something any responsible, good-faith government official would do — viz., try to coerce information from a morally guilty person in a real emergency with thousands of lives on the line. However noble the driving impulse, it would be a law designed to protect the physical comfort of a morally culpable person at the expense of the lives of countless innocent people whose deaths might be avoidable. That's not what we have a government for.

The best way, the honest, bright-line way, is to acknowledge that there are circumstances in which coercive interrogation would be appropriate; to be forthright about what those circumstances are and the lengths you would be willing to go; to require personal approval by a very high-ranking executive-branch official who would then be accountable; and to prove you mean business by aggressively prosecuting anyone and anything that does not meet the rigorous standards you've taken pains to establish.

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