Thursday, December 08, 2005

A little ironic, no?

   That liberals who criticize President Bush's "you're either with us, or your against us" mentality sometimes use the same reasoning against opponents of the McCain torture amendment.

   Take this example from the Michigan Senate GOP primary race, still in its infancy: the three candidates split on the McCain bill -- two against it.

   This caused some concern on a forum for progressives in my former home state. One of the commenters called opposition to the McCain amendment "endorcing [sic] torture." Friends of mine have taken similar positions.

   Sorry. It isn't quite that simple. Just as someone can abhor terrorism while opposing the Global War on Terror (is that what we're calling it this week), one can abhor torture without endorsing the McCain Amendment.

   As a general matter, I am against torture of detainees and others in the custody and control of the United States military. I can't imagine anything that has the potential to damge our standing the world community more than would the torture of detainees in the custody of the American government. And yet, I am not convinced that the McCain Amendment is the best way to prevent this, predominantly because the Amendment, while saying some very noble things that I support in principle, isn't terribly clear as to what it is proscribing.

The language defining torture in the McCain Amendment is as follows:

Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

That's it. You would think that our personnel are required to observe the protections of the constitutional amendments named in the provision, except that its only incorporating the referenced United Nations Convention, which reads, in pertinent part:

The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:

(1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

The Convention is not terribly clear either. We can all probably agree that beating, shocking, and drugging detainees is forbidden. What about sleep deprivation? Or requiring a detainee to stand for hours on end? Or waterboarding? These are the questions in the grey area of a necessarily grim business and would produce a variety of answers from different people.

   The upshot? More lawyers writing more memos for future administrations, not necessarily justifying torture, but just trying to figure out what the Hell the law actually means to the soldier on the ground.

   If you think the McCain Amendment, as it is written, is the key to ensuring that Abu Grahib never happens again, you're kidding yourself.

   If you want to label a McCain Amendment opponent as "pro-torture," (most opponents, anyway) show me a McCain Amendment that at least attempts to describe explicitly what practices we as Americans will not tolerate from our own armed forces, in addition to leaving the ambiguities allowed under the Convention in place for closer calls. That's a McCain Amendment I could begin to support: one that sets a firm, even unflinching, tone.

   If we can't spell out in our laws the very worst forms of treatment that we will not tolerate, setting a tangible threshold of minimal decency, how can we even begin to examine with any meaningful standards those marginal cases that will come up in the future?

   If we want to indulge our national pride by how well we treat our prisoners, then maybe we should get serious about what torture means as a practical matter. As much as a number of politicians have come out against torture, not one has gone so far as to initiate any meaningful debate -- one that is desperately vital to this issue -- over which methods are acceptable, and which are not.

   Not even John McCain.

   Nevertheless, though the conversation about what constitutes torture is unsettling, and even nauseating, it is one that we need to have if we are going to prevent another international disgrace.

9 Comments:

Blogger Kathy said...

The McCain bill has moral authority behind it simply because of his personal experience with torture. He understands that information coerced through inhumane methods is unreliable. As you might recall, McCain gave the name of the Green Bay (I think) football team roster under torture just to supply information.

I do agree that we need to "define" torture specifically to eliminate the grayness of the matter.

In the case of Sheriff Bouchard, I still say he supports torture. Michigan recently passed an amendment against torture, yet he speaks out in favor of using "tools" to coerce information from people - in a county jail no less. I'm sorry, but I cannot imagine any crime so heinous that a local county sheriff would feel he needed to torture a person into a confession. In fact, I find his mindset downright scary.

Bouchard is simply trying to parrot his party line.

8:16 AM  
Blogger Bostonian Exile said...

As concerns McCain himself, I agree with you. And that is the foundation of my concern.

His moral authority is a double-edged sword: while he is the right person to push this issue, the rest of the Senate has the obligation to think critically about this amendment -- even if that means opposing McCain because this particular amendment is not the best possible policy.

Democrats don't dare oppose him on any grounds (they have no political incentive to do so), and the Republicans who do oppose him are all painted with the "pro-torture" brush (some rightly, but some wrongly).

Because of this, I really think that we, as a nation, will pay dearly later for our refusal to approach McCain on this bill with anything but kid gloves.

As for Bouchard, I can't speak to much of anything except the statements quoted in the Free Press piece, i.e. I can't speak to the applicability of coerced information to his county office. As far as I could see, though, his discussion of "tools" does not sound too far off from the concerns I have described, and until I see more information to the contrary, I have to take that at face value.

9:10 AM  
Blogger Midwestern Progressive said...

As I see it, here is the problem with trying to define torture specifically.

My understanding of "waterboarding" is strapping someone's arms to a board, then dunking their heads in water, such that they cannot escape. You pull them up when they are on the edge of drowning, then repeat the process. (If this is an inaccurate description, please forgive me, but for this argument the description can serve a purpose.)

So, if McCain's bill outlaws waterboarding, someone determined to torture can switch to a long lead pipe.

If you add water-lead-piping to the list of proscribed torture methods, a determined torturer can switch to titanium drivers.

It will never end.

Know what I think is really sad though?

It was not that long ago that president's did not need to publicly vow that America does not torture. Everyone, especially Americans, but even the bad guys, knew that America does not torture.

Now, eh, not so much. That the Bush administration has gotten American to this place....to a place where we even need McCain's bill, is just amazing to me. Amazing, in a bad way.

(Sorry for the too-long comment.)

10:24 AM  
Blogger Kathy said...

"If we can't spell out in our laws the very worst forms of treatment that we will not tolerate, setting a tangible threshold of minimal decency, how can we even begin to examine with any meaningful standards those marginal cases that will come up in the future?"

I do agree with you about spelling out what forms of torture are/are not acceptable; otherwise, as Midwestern points out, we slide from waterboarding to lead pipes to titanium drivers.

Manufactures have QS9000 manuals that spell out every process along the way and how they need to be handled and addressed. Our government needs to develop the same types of procedural manuals. Of course, the Bush administration would not be happy about something like that. They excel in pushing the limits and exploiting the gray areas.

One other comment that occurred to me as I read your post. The Americans With Disabilities Act is another perfect example of our government not being definitive enough, and look what happened there...every person with an ingrown toenail tried to take advantage of it!

11:01 AM  
Blogger Bostonian Exile said...

Mid: You make a good point on several fronts.

Your understanding of "waterboarding" differs from mine in several substantial ways, which I think supports my earlier point that we need to know exactly what it is we are talking about before undertaking this national discussion.

Nevertheless, your illustration makes a good point, and I agree that there are real dangers in too high of a degree of specificity. That said, if we can devote thousands upon thousands of pages to the regulation of business in this country, we can no doubt do better than a rehash of an amorphous standard that apparently has not been terribly clear or effective in the past.

As to your point about the administration, I'm really not certain if this issue is a function of the administration, the conflict we find ourselves in, or both. But that is a question for another post.

11:01 AM  
Blogger Bostonian Exile said...

Kathy: Manufactures have QS9000 manuals that spell out every process along the way and how they need to be handled and addressed. Our government needs to develop the same types of procedural manuals.

Me: That said, if we can devote thousands upon thousands of pages to the regulation of business in this country, we can no doubt do better than a rehash of an amorphous standard that apparently has not been terribly clear or effective in the past.

Looks like we had similar thoughts at the exact same time. And good point on the ADA.

11:30 AM  
Blogger Kevin said...

Perhaps we need to adopt a philosophy like that of the Supreme Court on pornography, for defining torture, that is "I know it when I see it".

BTW, who was that who said that, Stewart, Blackmun, Groucho Marx?

1:22 PM  
Blogger Bostonian Exile said...

Perhaps we need to adopt a philosophy like that of the Supreme Court on pornography, for defining torture, that is "I know it when I see it".

BTW, who was that who said that, Stewart, Blackmun, Groucho Marx?


I believe that was Potter Stewart.

1:24 PM  
Anonymous Cardinal Martini said...

I really think "I know it when I see it" is a bad standard for defining torture. What's the point in having an amendment against something if we can't even define it? Shouldn't laws be clear so that everyone can know when he or she is following or violating it?

An interrogator in the field, or a military lawyer may think they "know it", but a judge later on may "know" something totally different.

3:56 AM  

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