John McCain's Spotty Record on Torture

You might say that he was against it before he was for it before he was against it in a recent op-ed

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Reuters/Jonathan Ernst


Sen. John McCain (R-Ariz.) surely deserves much of the credit he has received for his op-ed Thursday in The Washington Post in which he chided torture apologists for claiming that "enhanced interrogation" led American intelligence officials to Osama bin Laden. It is no small thing for him to have spoken out on the topic against former Bush officials, and many active partisans in his own party, and it will be much harder now going forward for any reasonable person to make the cynical claim.

But there is a difference between calling out people for lying about a form of torture in a particular instance, as Sen. McCain did in focusing upon Khalid Sheikh Mohammed, and being wholly against torture as a national policy and practice. And so even as many of us herald the senior senator from Arizona for his political courage this week we should at the same time remember that it is the very same Sen. McCain, of all people, who has been consistently cagey over the years about where he really stands on torture.

You might say that he was against it before he was for it before he was against it. And that ambiguity was reflected in the second paragraph of Thursday's piece. Sen. McCain wrote:

Much of this debate is a definitional one: whether any or all of these methods constitute torture. I believe some of them do, especially waterboarding, which is a mock execution and thus an exquisite form of torture. As such, they are prohibited by American laws and values, and I oppose them.

This is a lawyer's paragraph if there ever were one. Much of the debate over torture is "definitional" (rather than, say, "moral") because politicians like Sen. McCain have made it so. Definitions famously allow for leeway, after all, morality famously does not. Among other things, what this graph reminds us is that Sen. McCain still believes that: 1) Waterboarding is against the law; 2) "Some" other "enhanced interrogation" techniques are still legal, and; 3) What is "prohibited by American laws" can remain murky. Some of those "enhanced" techniques, the whole world now knows, can be just as brutal as the "simulated death" contemplated by waterboarding. Remember the drill-to-the-head story? How about the CIA Torture Report?   

Like those examples, the debate over Sen. McCain's high-wire act on torture is not new. For example, Marty Lederman and Andrew Sullivan (who called it "heartbreaking") and many others wrote about all of this in early 2008, when Sen. McCain was voting against an amendment introduced by Sen. Dianne Feinstein (D-Calif.) that would have banned torture not just by Defense Department personnel but also by interrogators of the Central Intelligence Agency. It would have, in fact, closed a loophole in federal law left in part by the much-ballyhooed McCain Anti-Torture Amendment, which itself turned out in the end to be a little less than completely "anti torture." I remember writing about that in 2005.

Anyway, here's what Sen. McCain said in 2008 about the Feinstein Amendment (which passed the Congress and was promptly vetoed by former president George W. Bush).

Throughout these debates, I have said that it was not my intent to eliminate the CIA interrogation program, but rather to ensure that the techniques it employs are humane and do not include such extreme techniques as waterboarding. I said on the Senate floor during the debate over the Military Commissions Act, "Let me state this flatly: it was never our purpose to prevent the CIA from detaining and interrogating terrorists. On the contrary, it is important to the war on terror that the CIA have the ability to do so. At the same time, the CIA's interrogation program has to abide by the rules, including the standards of the Detainee Treatment Act." This remains my view today.

When, in 2005, the Congress voted to apply the Field Manual to the Department of Defense, it deliberately excluded the CIA. The Field Manual, a public document written for military use, is not always directly translatable to use by intelligence officers. In view of this, the legislation allowed the CIA to retain the capacity to employ alternative interrogation techniques. I'd emphasize that the DTA permits the CIA to use different techniques than the military employs, but that it is not intended to permit the CIA to use unduly coercive techniques -- indeed, the same act prohibits the use of any cruel, inhumane, or degrading treatment 

Not what I could call a clarion call against torture. And neither is the senator's op-ed. Indeed, what's fascinating about the senator's piece this week is how well it shows he has mastered the compartmentalization of this issue, both in public and, evidently, in his own mind. He is against torturing terror suspects if they are waterboarded. But he won't vote to stop the torture of terror suspects if they are subject to other forms of "enhanced interrogation." He is against having American soldiers torture terror suspects, but he was in favor of allowing American intelligence officials to continue to do so. And he just "defines" away the contradictions. Quite literally, a tortured soul.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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