I'm heartbroken. Torture is illegal and immoral whether it is conducted by the military or the CIA. That was McCain's original position. It appears it is no longer. Marty Lederman homes in on the key point:
Senator McCain rightly insists that the U.S. may not (i) torture; (ii) engage in cruel treatment prohibited by Common Article 3; or (iii) engage in conduct that shocks the conscience, under the McCain Amendment. He also insists that waterboarding violates each of these legal restrictions, that the Bush Administration's legal analysis has been dishonest and flatly wrong, and that we need "a good faith interpretation of the statutes that guide what is permissible in the CIA program."
The Feinstein Amendment would have accomplished all of these objectives, but Senator McCain voted against it, presumably because he wishes that the CIA be permitted to continue the use of other of its enhanced techniques, apart from waterboarding. Those techniques are reported to include stress positions, hypothermia, threats to the detainee and his family, severe sleep deprivation, and severe sensory deprivation. Senator McCain has not explained which of these he thinks are not torture and cruel treatment, nor which he would wish to preserve for use by the CIA. But if the President does as he has promised and follows Senator McCain's lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques -- and possibly waterboarding, as well.
This is why the focus on waterboarding has been necessary but distracting. It has allowed people to believe that this relatively rare technique is the beginning and end of the Bush-Cheney torture regime. It isn't. It's a fraction of the illegal abuse that they have condoned and believe in. I simply cannot see any explanation for this except politics - that McCain feels the need to appease the Republican far right at this point in time, and, tragically, the right to torture has now become a litmus test of "conservative" orthodoxy. It's a Karl Rove wedge issue of a classic kind: using the crudest of emotional appeals to gin up populist authoritarianism for the sake of Republican partisan advantage in wartime. There is nothing conservative about torture, of course. But the authoritarians of the far right are hardly conservatives in the traditional sense either.
So McCain reveals himself as a positioner even on the subject on which he has gained a reputation for unimpeachable integrity. It's worth reading Jon Chait's illuminating new piece in this context. I repeat that I am heartbroken. McCain has indeed been a leader in preventing the military from torturing terror suspects, and in banning waterboarding. But by leaving this lacuna in the law, he gives this president the space he wants. As president himself, of course, McCain would surely instruct the CIA to uphold the American way of interrogation, and not to adopt techniques once used by the Gestapo and prosecuted by the US as war crimes. But we now know that there will be one difference between Obama and McCain in November. One will never tolerate torture; the other just did.