McCain: Against Torture, But

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.

McCain's full statement is after the jump:

Mr. President, I oppose passage of the Intelligence Authorization Conference Report in its current form.

During conference proceedings, conferees voted by a narrow margin to include a provision that would apply the Army Field Manual to the interrogation activities of the Central Intelligence Agency.  The sponsors of that provision have stated that their goal is to ensure that detainees under American control are not subject to torture.  I strongly share this goal, and believe that only by ensuring that the United States adheres to our international obligations and our deepest values can we maintain the moral credibility that is our greatest asset in the war on terror.

That is why I fought for passage of the Detainee Treatment Act (DTA), which applied the Army Field Manual on interrogation to all military detainees and barred cruel, inhumane and degrading treatment of any detainee held by any agency.  In 2006, I insisted that the Military Commissions Act (MCA) preserve the undiluted protections of Common Article 3 of the Geneva Conventions for our personnel in the field.  And I have expressed repeatedly my view that the controversial technique known as “waterboarding” constitutes nothing less than illegal torture.

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.   

Similarly, as I stated after passage of the Military Commissions Act in 2006, nothing contained in that bill would require the closure of the CIA’s detainee program; the only requirement was that any such program be in accordance with law and our treaty obligations, including Geneva Common Article 3.

The conference report would go beyond any of the recent laws that I just mentioned – laws that were extensively debated and considered – by bringing the CIA under the Army Field Manual, extinguishing thereby the ability of that agency to employ any interrogation technique beyond those publicly listed and formulated for military use.  I cannot support such a step because I have not been convinced that the Congress erred by deliberately excluding the CIA.  I believe that our energies are better directed at ensuring that all techniques, whether used by the military or the CIA, are in full compliance with our international obligations and in accordance with our deepest values.  What we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program.

This necessarily brings us to the question of waterboarding.  Administration officials have stated in recent days that this technique is no longer in use, but they have declined to say that it is illegal under current law.  I believe that it is clearly illegal and that we should publicly recognize this fact.

In assessing the legality of waterboarding, the Administration has chosen to apply a “shocks the conscience” analysis to its interpretation of the DTA.  I stated during the passage of that law that a fair reading of the prohibition on cruel, inhumane, and degrading treatment outlaws waterboarding and other extreme techniques.  It is, or should be, beyond dispute that waterboarding “shocks the conscience.”

It is also incontestable that waterboarding is outlawed by the Military Commissions Act, and it was the clear intent of Congress to prohibit the practice.  The MCA enumerates grave breaches of Common Article 3 of the Geneva Conventions that constitute offenses under the War Crimes Act.  Among these is an explicit prohibition on acts that inflict “serious and non-transitory mental harm,” which the MCA states “need not be prolonged.”  Staging a mock execution by inducing the misperception of drowning is a clear violation of this standard.  Indeed, during the negotiations, we were personally assured by Administration officials that this language, which applies to all agencies of the U.S. Government, prohibited waterboarding.

It is unfortunate that the reluctance of officials to stand by this straightforward conclusion has produced in the Congress such frustration that we are today debating whether to apply a military field manual to non-military intelligence activities.  It would be far better, I believe, for the Administration to state forthrightly what is clear in current law – that anyone who engages in waterboarding, on behalf of any U.S. government agency, puts himself at risk of criminal prosecution and civil liability.

We have come a long way in the fight against violent extremists, and the road to victory will be longer still.  I support a robust offensive to wage and prevail in this struggle.  But as we confront those committed to our destruction, it is vital that we never forget that we are, first and foremost, Americans.  The laws and values that have built our nation are a source of strength, not weakness, and we will win the war on terror not in spite of devotion to our cherished values, but because we have held fast to them.