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Torture Logic

Where does the logic of the McCain amendment lead?

Nov 28, 2005, Vol. 11, No. 11 • By DAVID TELL, FOR THE EDITORS
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THE SENATE-APPROVED VERSIONS of next year's Defense authorization and appropriations bills each contain an amendment sponsored by Arizona's John McCain that would, as the commonplace newspaper shorthand has it, "make torture illegal" at Pentagon facilities throughout the world. The House-approved versions do not contain such language, and House-Senate conferees have yet to negotiate the final, "reconciled" legislation they will eventually send to the White House. But if either measure still contains the McCain amendment when it reaches his desk, President Bush will apparently cast a veto--his first ever.

It's not entirely clear just why. The White House has been singularly uncommunicative about its objectives.

Could be the administration's objection is grounded in separation-of-powers theory: The Constitution assigns the president alone an unenumerated "executive Power," and specifically designates him the "Commander in Chief of the Army and Navy," so any congressional attempt to regulate the conduct of an ongoing war must be resisted as an encroachment by one branch of government on the prerogatives of another--that kind of thing. Media reports, at any rate, routinely attribute such thinking to Vice President Dick Cheney's office, apparently the locus delicti of West Wing opposition to the McCain anti-torture campaign. And the Office of Management and Budget, citing "the Constitution," indicates general concern among the president's "senior advisers" that the amendment in question "would restrict the president's authority to protect Americans effectively from terrorist attack and bring terrorists to justice."

But there's got to be more to it than that, doesn't there? After all, the Constitution simultaneously gives Congress, not the president, plenary authority to "make Rules for the Government and Regulation of the land and naval Forces"--rules about interrogation practices presumably among them. And a large body of uniformed-services law has been on the federal statute books since 1775, before the Constitution even existed. If the president's senior advisers are similarly concerned about the Uniform Code of Military Justice, the Washington Post has not reported it.

The Washington Post has, however, reported, among other things, that Cheney aide David Addington is the brains behind a "White House memo justifying torture of terrorism suspects." And that motive, as well, is more-or-less routinely--and matter-of-factly--advanced as an explanation for the Bush veto threat. It's a baby-with-the-bathwater problem, we're given to understand: "Torture" per se is something the administration is happy to disavow, but what if the McCain amendment's additional prohibition against "cruel, inhuman, or degrading treatment or punishment" winds up interfering with . . . some other useful stuff the Pentagon and CIA are purportedly up to? Or, as Sen. McCain himself has characterized the debate in a recent issue of Newsweek, there are

those Americans who believe that a less rigorous application of [our] values is regrettably necessary to prevail over a uniquely abhorrent and dangerous enemy. . . . Some view more coercive interrogation tactics as something short of torture but worry that they might be subject to challenge under the "no cruel, inhuman or degrading" standard. . . . For instance, there has been considerable press attention to a tactic called "waterboarding," where a prisoner is restrained and blindfolded while an interrogator pours water on his face and into his mouth--causing the prisoner to believe he is being drowned.

Sen. McCain calls waterboarding, too, a form of torture, mind you. But there are "those Americans" who think it should count as something less, he suggests. And, by implication, it is those same Americans who are presently resisting McCain's amendment, so as to preserve the waterboard--and God knows what else--in our government's war-on-terrorism arsenal.

If this is an accurate account of things, as practically the whole rest of the world outside of 1600 Pennsylvania Avenue seems convinced it is, then the administration's position on the McCain amendment is both politically and morally unsustainable, and the president's veto threat is an embarrassment to the entire country.

And yet, we can't help wondering: What makes everybody so sure the situation isn't just a teeny bit more complicated than that? What, for example, do we suppose the practical, nitty-gritty effect will really be once the McCain amendment has become law and terror-suspect detainees, "regardless of nationality or physical location," begin to enjoy an absolute guarantee against "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States"? Does anybody know? Has anybody even thought about it?