December 16, 2005

Tortuous Rhetoric Obscures Torturous Language

Yesterday, the House of Representatives went on record as being firmly against torturing prisoners. Then they swiftly voted in favor of a bill that said Nazis are bad, slavery should be abolished, and that Shoeless Joe Jackson shouldn't have accepted a bribe to throw the World Series.

What they didn't do, and neither did the Senate, in their lopsided votes in favor of the McCain "anti-torture" amendment, was address the actual problem of that remarkably insidious grab for attention from perhaps the supreme ego in Congress, John McCain: what exactly constitutes the cruel, inhumane, and/or degrading treatment that will be banned, now that the White House has been bullied into agreement?

As a commenter on Brit Hume asked Tuesday, does incarceration itself count as degrading? How about interrogation? Many jihadis doubtless consider it very cruel to prevent them from dying as martyrs (and getting their seventy-two raisins in Paradise) by blowing up forty or fifty apostates (voters) in a mosque.

So far, no news story I've read has really spelled any of this out. It's likely that Congress hasn't, either. The closest was this AP story, which ended with the following cryptic explanation:

The ban defines "cruel, inhuman and degrading" as treatment prohibited by the U.S. Constitution as defined in the U.N. convention against torture.

So what exactly does this mean? The only related reference in the Constitution is this, the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Considering the entire circus court system, I rather suspect that the phrase "cruel and unusual punishments" has more than a two hundred year history of litigation to define exactly what is meant. But the McCain amendment doesn't prohibit "cruel and unusual amendments," it prohibits "cruel, inhuman and degrading practices."

The first question would be, does that mean practices that are all three -- cruel AND inhuman (or inhumane, there seems to be consistency) AND degrading? Or any practice that is any one of the three?

Assuming the latter, as clearly is the intent, then what do those terms themselves mean? Unlike "cruel and unusual punishment," there is no long chain of litigation to define just what exactly is prohibited. Waterboarding? Sleep deprivation? Isolation? Loud noises or lousy music? Bad-tasting food? Yelling?

If I were a judge hearing such a case, I would be sore tempted simply to use the constitutional definition of cruel and unusual punishment... especially if, as AP claims above, the agreed-upon amendment actually mentions the Constitution in the context of defining the meanings of the words. If that becomes the standard, then I think we're in a lot better shape than if it's defined by what will satisfy Belgium.

The one agreement extracted by Bush, thus avoiding a total cave, was that both military and civilian interrogators can use as a defense (presumably an affirmative defense, requiring them to prove beyond a reasonable doubt) that "a reasonable person could have concluded they were following a lawful order," as AP put it. This removes the immediate danger of mass prosecutions of all interrogators (perhaps going after anyone who is unusually effective at eliciting information), but the principle is still hanging out there: thou shalt not make detainees uncomfortable.

Thus, in despite of the side agreement, I would have to agree with what appears to be a very recent addendum to an October 30th editorial in the Wall Street Journal:

One old Washington hand--who served in the Nixon Cabinet--tells us that the Senate vote on the McCain Amendment was "a Vietnam moment." He fears that the lopsided 90-9 tally will be read by our enemies as a sign of flagging American willingness to act firmly in our own self-defense.

Unfortunately, the White House has contributed to this signal by blinking on its veto threat. Vice President Dick Cheney's office has proposed a compromise that would exempt the CIA from the McCain Amendment. We understand the impulse to preserve at least some flexibility for the Agency interrogators who question the worst of al Qaeda--such as Khalid Sheikh Mohammed, who planned 9/11.

But this Bush compromise isn't tenable. If U.S. interrogation practices are morally defensible, then they should be justified for all departments under executive branch supervision. And if the White House truly believes the McCain Amendment will damage American ability to obtain actionable intelligence from the enemy, then it ought to say so loudly and clearly and force Congress to take responsibility for its wartime micromanagement. Mr. McCain will then be accountable for the inevitable loss of intelligence-gathering capacity.

Alas, the Bush administration doesn't have the freedom of the WSJ's editorial staff: they actually have to govern for the next three years. And this time, the president, a former military pilot, obviously decided that a controlled crash was better than a midair explosion.

Hatched by Dafydd on this day, December 16, 2005, at the time of 12:03 AM

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The following hissed in response by: stackja1945

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