Readers will have to judge for themselves what Senator John McCain said on "Face the Nation" yesterday. I'm afraid it confirms my worst fears: there is no legislative brake on the president's use of torture, and the only restriction that has any teeth is that the president may - but may choose not to - publish his torture techniques in the Federal Register. Moreover, there seems to be no actual legal requirement for the president to do so, and no legal time frame cited in which he must provide details in the Federal Register. Can you imagine Cheney volunteering such information? Even if the president were to do so, any Congressional attempt to roll back specific torture methods would probably require a veto-proof majority, as Marty Lederman points out. The "transparency" is therefore transparently opaque.
There is no legal provision to prevent water-boarding, hypothermia, long-time-standing, intense sleep deprivation, or many of the abuses documented at Guantanamo and Abu Ghraib - and cited in the "Gulag Archipelago". All of that is left up to this president to decide - and we know what his record is: brutality toward terror suspects, and reckless, ad hoc conflation of the innocent with the guilty.
Ask yourself this question: in the days after Abu Ghraib was exposed, did you believe that within a few years, the Congress of the United States would be formally decriminalizing exactly the techniques depicted in many of those photographs - and allowing the president to use his discretion to order them? Now absorb the fact that they are on the verge of doing just that. If this bill is passed, Abu Ghraib will be American policy, and integral across the world to the meaning of America. That's a devastating self-inflicted wound in this war of ideas.
Here's the key part of the McCain transcript:
Mr. HARRIS: This whole debate turned on things that I think most citizens couldn't understand. You said you--severe punishment, pain should not be inflicted, but serious pain can--what can that possibly mean in concrete terms?
Sen. McCAIN: In concrete terms, it could mean that waterboarding and other extreme measures such as extreme deprivation--sleep deprivation, hypothermia and others would be not allowed.
Mr. HARRIS: That's what you say. What if the administration interprets it differently, as it is allowed to do under the provisions of this law? What if you disagree with the interpretation?
Sen. McCAIN: If we disagree with the interpretation, the fact is that those interpretations have to be published in the Federal Register. That's a document that's available to all Americans, including the press. And we in Congress, and the judiciary, if challenged, have the ability then to examine that interpretation and act legislatively. These are regulations the president would issue, we would be passing laws which trump regulations.
Mr. HARRIS: If you have confidence that those were--tactics were disallowed, why didn't you get it in the--in the actual law?
Sen. McCAIN: What we did, John, was we called--outlawed certain procedures, including some of those that you might think would be natural--murder, rape, etc.--but also cruel and inhuman--we included cruel and inhuman treatments, not as severe as torture but could still be considered a crime.
[Bob] SCHIEFFER: Well, we look at...
Sen. McCAIN: I'm confident that some of the abuses that were reportedly committed in the past will be prohibited in the future.
This "confidence" rests entirely on McCain's personal trust in this president not to authorize various forms of torture against military prisoners. There is no rule of law in these instances. There is the will of one man - the president - against the confidence of another man - Senator McCain. That's it. The rule of law - on something as critical as torture - is potentially over.
(Photo: Mark Wilson/Getty.)
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