Where does the logic of the McCain amendment lead?
Nov 28, 2005, Vol. 11, No. 11 • By DAVID TELL, FOR THE EDITORS
Will the residents of Abu Ghraib and Guantanamo Bay be entitled to conditions of confinement meeting exactly the same standards federal judges have cumulatively imposed, under the Eighth Amendment, on San Quentin and Leavenworth? Will American intelligence officers questioning captured al Qaeda operatives be required to observe the same constitutional restrictions that would apply were they talking to a drunk-driving arrestee in a stateside suburban jail? In a stateside suburban jail, government abuses sufficient to "shock the conscience"--the Supreme Court's notoriously ambiguous, 53-year-old benchmark--are an impermissible abridgment of Fourteenth Amendment due process. And in Afghanistan, Iraq, and Guantanamo, our consciences have been shocked for quite some time now.
But by what, precisely? Is it the scale and severity of the abuse involved? The United States has detained more than 83,000 foreign citizens at one time or another since September 11, 2001. According to data submitted by the State Department to the U.N. Committee Against Torture in late October, 221 substantiated cases of American abuse or misconduct have resulted from these detentions. There's no reason to assume that all these cases involved a serious injury. But let's assume it anyway, and let's also assume that vast numbers of never-reported abuses should also be charged against our troops--so that the "real" number is 2,210, fully ten times higher. U.S. war-on-terrorism detainees would still have a violent crime victimization rate dramatically lower than that experienced last year by residents of Manhattan's Mid-Town South police precinct, home of the New York Times.
More likely, we suspect, the total numbers haven't mattered all that much; it's the sensational character of certain high-profile abuse allegations that's caused the most distress. Take "Prisoner 063," for example, who's now been detained at Guantanamo for four-plus years. In late 2002, they made him the subject of a "special interrogation plan," and they treated him pretty rough. He was menaced by dogs, deprived of sleep, segregated from the general detainee population, splashed with water bottles. And--this being the part that really seems to get to people--the victim was repeatedly subjected to "gender coercion," in a manner certain to outrage his Muslim piety. On various occasions over a period of three months, female interrogators "invaded the personal space" of this gentleman, looked at him naked, made him wear a bra on his head, and massaged his back and neck in a sexually provocative manner.
Prisoner 063, incidentally, is one Mr. Mohammed al-Qahtani, who, had immigration officials not turned him away from Orlando International Airport on August 4, 2001, would a few weeks later have been the missing fifth hijacker on United Airlines Flight 93. Shortly before 9:30 a.m. on September 11, he'd have been barricaded in the cockpit along with four other al Qaeda operatives and 49-year-old United purser Debbie Welsh. It's said the surviving black box cockpit recorder captures her voice: "Please don't hurt me. Oh, dear God, I don't want to die!" A short while later on the tape there's a "gurgling sound, then silence," as Debbie Welsh's throat is cut and she drowns in her own blood. Mr. al-Qahtani's religious views governing "personal space" and appropriate contact with a female would appear to be a very tricky business, in other words.
Is it really so conscience-shocking that U.S. interrogators failed to respect those views?
There is a lot to be ambivalent about in the current controversy over torture. Better than a presidential veto, or incompletely considered legislation extending the equivalent of constitutional due process rights to murderous foreign enemies like Mohammed al-Qahtani, would be a serious, detailed, public debate about how, exactly, a civilized country is really supposed to deal with such men once it's caught them. We haven't figured it out yet, that much is clear.
--David Tell, for the Editors