If it has a provision for a classified appendix, and if it has a provision for changing the standard as the war evolves, and there is some mention of a pardon (or an administrative review board with the ability to expunge) for the ticking bomb scenario, then sign me up. Let's move on to something more worthwhile.

"narco-interrogation"

What do you mean by that? The methods used by those in the Drug War? or using narcotics etc to get a terrorist to give up prized secrets?

As I understand it, and this is from an article not in a field manual but Atlantic Monthly, interrogation is far more an art than a science at this point (though perhaps neuroscience has provided methods with more confidence, for instance).

When you say you prefer those methods, are you speaking from experience or just a moral position?

Also, does doping up fanatics to get them to chill out work as well as giving them some drug that gives them some hyperbolic sense of grandeur or a sense of invulnerability etc that would combine with their elitism and make them spill the beans with some sort of feeling of righteous impunity? Just curious about how discrete chemical effects are on a given suspect.

Daniel Markham:

The McCain Amendment does allow for a classified appendix.

scalpelkinch:

Interrogation is indeed an art rather than a science.

As I understand it from talking with people far more knowledgeable than myself on this subject, narco-interrogation is quite effective at breaking down barriers and inhibitions that, combined with the right psychological techniques, can induce somebody to talk. Gerald Posner sketches out one possible manner in which this occurred in his treatment on the purported interrogation of Abu Zubaydah after his capture at the end of "Why America Slept."

I also don't have any problems on using addiction/withdrawl inducement as a means of extracting information either. I should add that none of the information available as a result of these techniques could be admitted in court.

Thank you Thank you.

I don't think this is an issue 'of little importance'. I think the administrations refusal to have a public debate on american policy has only made the public fear the worst about american intentions. I think if the administration entered a frank debate about how we should handle ourselves in the future it might clear up alot of the apprehension about 'torture' and 'black sites'. I think the goal of torture, it's strengths and weaknesses,what we should allow and should not allow should be clear to the american (and world) public.

Highly recommend the mark bowden (Black Hawk Down) Atlantic article on torture. Also, note McCain's talks about his own torture, the more he was tortured, the more spitefull he became. When they asked for the troops under his command, he gave them the offensive line of the Green Bay Packers.

There was another, smaller atlantic article on torture, about the two best interrogators in WW2, a german who spoke fluent english that specifically worked on american flyboys, and an american who worked on Japanese prisoners.

Here's their trick, they did it by being (gasp) nice. That's right, instead of torturing their victims, they tried to get them out of the combat mindstate, and thus out of the 'us vs. them' mentality. The war was over (for them at least) so why shouldn't they enjoy themselves? He got them to talk for long stretches at a time, often with good cigarettes, food, water, liqour. Whatever it took to make them comfortable.

He talked about their home town, he talked about their battle scars (apparently soldiers love that) and eventually these men felt comfortable enough to inadvertently give up little bits of information: where they trained, how they trained, who did they work under, what was the personality of commanders around them etc etc etc. Small intelligence but when corraborated by multiple soldiers over the course of several years, can be devastatingly accurate.

I also think the 'ticking time bomb' case is a little overrated, one of the ways torture is succesfull is by making it appear that it will never end. Where the only way of repealling a lifetime of suffering is by talking. If a prisoner feels that they only need to wait x hours to be sucessfull, what's going to stop them from lying, profously and continuosly until the 'bomb' goes off?

Once again, unconcerned by torturing al queda, but when we peak up random germans and then later say "oops, my bad" I get worried.

I think the administrations refusal to have a public debate on american policy has only made the public fear the worst about american intentions.

Okay and just for a frame of reference, which was the last administration that invited a public debate on American foreign policy and what form did that debate take?

Actually i find the ticking timbbomb argument unconvincing. I have a problem with legislating torture (actual torture, not loud Metallica and no night light) in any respect. In the timebomb scenario, what needs to be done should be done and the presidential pardon is the remedy. Thats what it exists for. Whether a certain case rises to that level becomes a political question after the fact, which is appropriate.

I support prong 1 of the McCain bill, making the U.S. Army Field Manual on Intelligence Interrogation the standard for interrogating detainees. This prong does not legislate torture, but defers to standards set by the executive branch, some of which will be classified. The President has power under the Constitution to pardon, so the bill doesn't need to mention it.

The second prong is more problematic to me. It prohibits "cruel, inhuman, or degrading treatment," which if you follow the references through to their conclusion means activity that would be barred by the prohibition against cruel and unusual punishment guaranteed by the Fifth, Eighth and Fourteenth Amendments. I don't think anybody knows what this means. For example, in an American prison it would violate your constitutional rights if the temperature is not maintained in a reasonable level. Is the same true in an Iraq? Who knows? The caselaw is all based upon matters of degree and circumstances and the government can always argue "there" is different than "here." (as could the detainee) In sum, this is not an anti-torture standard, it appears to be license for the courts to develop a torture standard on a case-by-case basis over a span of decades.

So, I'm split on this.

It is most definitely unwise to, unintentionally and lightly, use legal terms pertaining to the Constitutional rights of American citizens concerning interrogation abroad of non-citizen terrorists seized and held abroad. That gives foreign terrorists the same rights as American citizens.

Unwise, that is, if you want us to win the war on terror. If you want America to lose it, then use of such terms is a great idea.

As I understand it from talking with people far more knowledgeable than myself on this subject, narco-interrogation is quite effective at breaking down barriers and inhibitions that, combined with the right psychological techniques, can induce somebody to talk.

The McCain law has nothing to do with torture. It bans degrading treatment, whatever that means. Most terroists come from societies where having your sister hold hands with a boy, degrades you and justifies you in murdering her. Further, it will be just one more excuse for the idiots in black robes to cripple the military. It is a bad law and the President should veto it.

As to the "ticking time bomb" scenario, McCain (who has spoken with Israeli intelligence and security officials on this issue) has made it quite clear in interviews with Newsweek and other publications that in those rare situations you do whatever you have to and deal with the consequences afterwards. The president has the power to pardon people and no one is going to fault an interrogator who saves millions of innocent lives in doing so.

The only flaw that I find in this approach is that I'm concerned there might be bureaucratic by-the-book types out there for whom a "rule is a rule," and they'd be incapable of weighing consequences that hadn't been pre-weighted for them. You can see some of this in the sophomoric arguments raised in opposition to practically anything that anyone might consider torturous (such as practicing one's piano lessons).

Yes Virginia, there really are such people... even in positions of authority in the intelligence services. I know one or two. (Well, one for sure.)

I've always said that if you can find a volunteer to undergo the same "torture" you intend for the detainee (ever if you don't actually put them through it) then there's no moral dilemma implied in imposing that measure. The only issue is then whether it's effective. But I daresay even the proponents of torture in the ticking time bomb scenario are too squeamish to specify that solution.

Actually it was too glib to say that finding a volunteer to suffer the same torture contemplated for the detainee involves no moral ambiguities. Actually, it's useful to consider that scenario because it tends to remove the moral ambiguities in other scenarios. It does, however, introduce moral problems of its own. The ideal situation would be to find someone willing to undergo exactly the same treatment he imposes on the detainee... which would tend to remove any moral blemish. Even Dan's scenario doesn't approach that degree of rectitude, but it does suggest he's on the right track. I don't object strenously to his argument, it's just that the absence of a specific rule might throw a monkey wrench into the deliberations at precisely the wrong moment. The issue of "sacrifice" wouldn't even come up because there are some kinds of people who wouldn't even allow it to be considered, were the conditions not specified in triplicate.

I am curious which of the following people posting here will classify as torture:

1. Sleep deprivation.
2. Use of drugs (truth serum).
3. Use of drugs (truth serum) if it is against the religion of the interogee.
4. Having a large dog bark an threaten the prisoner.
5. Making the prisoner were women's underwear
6. Waterboarding i.e. wrap the face in cellophane and pour water over it.

Buck: I would say waterboarding definitely, sleep deprivation probably (I also think it's a method especially likely to produce confabulated fake-intelligence), and the dog possibly, depending on the extent to which the dog is menacing the prisoner for not cooperating with the interrogatation compared to being used to inhibit escape or force the prisoner to comply with reasonable demands. I don't have an instant opinion on drugs. The underwear is not a problem.

buck smith: I've got three answers:

1. If the test is severe physical or mental pain or suffering, I'm not sure any of these are torture unless there were some aggravating circumstance. The exception might be waterboarding, which Mark Bowden says is on "the line" and Mark Buehner says we perform on some of our own troops. For now, I think reasonable minds can disagree on waterboarding.

2. If the test is more broadly "whether we should be doing any of these things," I strongly doubt the effectiveness of barking dogs and women's underwear, or at least the effectiveness compared with less carnival-like procedures as solitary confinement. Even if not "torture" there is a moral hazard to our troops if they engage in abusive behavior, not the least of which is that disorderly conduct might cross the line into severe pain and suffering.

3. Under prong two of the McCain bill it strikes me that its all illegal. Under the Constitution, you can't interrogate a prisoner or suspected criminal using drugs or systematic sleep deprivation. Here's a Congressional research paper that wonders about the scope of the criminal protections under the Constitution as applied in the non-criminal context.

"in those rare situations you do whatever you have to and deal with the consequences afterwards. The president has the power to pardon people and no one is going to fault an interrogator who saves millions of innocent lives in doing so."

Passing a law and telling people they should break it if they need to is bad policy. Nobody is ever going to be faced with hard proof there's a nuclear time bomb in Manhattan. What they'll get is "somebody else said there's an operation in progress and this guy knows the details." If it's going to kill 10 people, does that justify torture? If there's a 50% chance of being right, does that up the minimum to 20 deaths? Do we give pardons to people who acted in good faith but were given bad data? This is Congress abdicating responsibility and throwing it onto the interrogators, who only know that someone will call a press conference to condemn them whichever action they take.

More implementing legislation would be required to protect those who break this damned stupid amendment under orders of the President than to outright legalize toture.

Everyone who breaks the McCain amendment under orders of the President would need (a) a formal pardon on the spot, (b) federal legislation stating that no person who receives such a pardon can bear any civil liability for any acts committed by him during his federal employment (not just the torture - people like Ramsey Clark and foreign attorneys willl come after him), © federal legislation providing what is basically Cumis counsel (California legal term meaning a team of attorneys of his choice to defend him against any civil or criminal charges anywhere arising from or related to his federal employment, (d) indemnity for any expenses incurred by him arising from his federal employment, and (e) TREATIES with as many foreign countries as possible giving him similar protection abroad. Plus a contract stating that we'll use military force to rescue him from foreign jails when he's arrested abroad, or kidnapped in this country & taken to a foreign jail.

All this just to get around the McCain amendment the way McCain thinks will be so easy.

Its whole purpose is to give lefty lawyers a crack at our troops and intelligence officers for daring to protect us from those who would kill us.

And I'm one of those who thinks torture should be used only in the most extreme situations - prospective WMD use inside America. I am thoroughly familiar with the slippery slope here. See my posts below at Message No. 40 and lower:

http://www.windsofchange.net/archives/007829.php#c40

Alchemist:

The Atlantic article you're looking for on the German/American interrogators is found here:

http://www.theatlantic.com/doc/200506/budiansky

Otherwise, I'm with Darling.

I think Tom Holsinger (#18) makes several good points about how getting around the McCain bill would not be as simple and as inconsequential as a pardon and I don't think that we can always assume that the President will do the "right thing" and pardon someone when we pass this law. The President may be philosophically opposed to pardons, he or she may be too politically weak to delve into the controversy, there may be international implications, etc. If you accept the McCain loophole then you have to accept the responsibility for potentially incarcerating someone who follows his advise.

Still, we don't pass traffic laws based upon the 0.00001% likelihood that someone may need to speed to the hospital with an injured person. If the ticking timebomb is truly an extremely rare likelihood, then I'll buy the McCain/Bowden/Darling "ignore the law in extreme circumstances" loophole. I would feel much better about that though if the standards for what is and what is not torture were clear.

National Review's Corner has figured out the civil liability issue too - the McCain amendment would let terrorists sue our soliders and spooks for federal civil rights violations. Worse, it invites them to file civil suits in foreign courts too.

http://corner.nationalreview.com/05_12_04_corner-archive.asp#084272

Trent calls the McCain amendment the "Ramsay Clark Empowerment Act", because Clark will use it to sue our soldiers and spooks of all our enemeies who will claim they were tortured whether or not they were even questioned.

I it the "Terrorist Lawyers' Relief Act."

Moderators, please delete the above post of mine. I sneezed and accidently sent it before finishing it. What I meant to say was:

Trent calls the McCain amendment the "Ramsay Clark Empowerment Act", because Clark will use it to sue our soldiers and spooks on behalf of all our enemies who will claim they were tortured whether or not they were even questioned.

I call it the "Terrorist Lawyers' Relief Act."

Tom Holsinger:

People have been trying to sue, with varying degrees of success, in an effort to criminalize policies they don't like for several years now - I'm sure you haven't missed all of the efforts to get senior Bush administration officials indicted on war crimes charges in places like Belgium. People have also been claiming that US officials and/or our allies have subject terrorist suspects to torture in any number of terrorism cases as a variant of the old police abuse defense that has been around for God knows how long. I don't think that the fact that Ramsey Clark and Co. are going to sue because of this stuff (aren't there already shield laws covering military and police interrogations as long as they occur within the parameters set forth under the law) should serve as a reason to prevent us from implementing the McCain Amendment for the reasons I laid out above. It's not like Clark et al. weren't suing to try and criminalize our interrogation policies before.

Here again, what McCain (and I suspect most interrogators as well) understands as a result of talking with Israeli officials is that if you ever get into a ticking time bomb scenario, you do whatever you have to and worry about the consequences later. Note that I say you do what you have to rather than torture because, as I noted at the beginning, I don't think that it's an effective interrogation tool to begin with in these types of situations, but if you think you have to beat the crap out of somebody in these types of circumstances then that's what you do. And especially in the ticking time bomb scenario, I want for there to be the most accurate information possible at policy-makers' disposal.

Dan,
Not to get into too long a discussion of qualified immunity in the civilian law enforcement sense, but the concept doesn't stretch far enough to prevent the kind of civil liability that Trent and Tom are refering to.

You seem to be relying on an amount of "good sense" that the courts haven't been demonstrating for some decades.

Robin Roberts:

Then if that's the case, the question seems to be whether or not the problem is the law or the courts. If the courts are the problem - and I'd readily argue that they are - then that is where the effort needs to be applied against rather than the legislation itself.

"Note that I say you do what you have to rather than torture because, as I noted at the beginning, I don't think that it's an effective interrogation tool to begin with in these types of situations, but if you think you have to beat the crap out of somebody in these types of circumstances then that's what you do. And especially in the ticking time bomb scenario, I want for there to be the most accurate information possible at policy-makers' disposal."

So...does torture work? Or not?

Steve:

Interrogation, as was noted above, is an art rather than a science and varies from individual to individual. Some people break under torture, some don't, and some give out a mixture of reliable and unreliable information or completely unreliable information because they think it's what you want to hear to stop the pain. A captured terrorist described in a ticking time bomb style scenario might give you vital information if subjected to torture ... or he might give you something that sounds like vital information because it stops the pain and he knows that he only has to hold out for a finite amount of time until the bomb goes off.

Steve,

The problem is that torture works too well, and that creates a constant temptation to keep on using it.

Please check out my posts in Trent's thread on how the French rode that slippery slope all the way to the bottom.

I saw this today... while it could still be argued either way; I found it interesting. (Although, I do know how people here feel about the New york Times)

Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim

WASHINGTON, Dec. 8 - The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.

The fact that Mr. Libi recanted after the American invasion of Iraq and that intelligence based on his remarks was withdrawn by the C.I.A. in March 2004 has been public for more than a year. But American officials had not previously acknowledged either that Mr. Libi made the false statements in foreign custody or that Mr. Libi contended that his statements had been coerced.

A government official said that some intelligence provided by Mr. Libi about Al Qaeda had been accurate, and that Mr. Libi's claims that he had been treated harshly in Egyptian custody had not been corroborated.

A classified Defense Intelligence Agency report issued in February 2002 that expressed skepticism about Mr. Libi's credibility on questions related to Iraq and Al Qaeda was based in part on the knowledge that he was no longer in American custody when he made the detailed statements, and that he might have been subjected to harsh treatment, the officials said. They said the C.I.A.'s decision to withdraw the intelligence based on Mr. Libi's claims had been made because of his later assertions, beginning in January 2004, that he had fabricated them to obtain better treatment from his captors.

Somebody want to run with this?

Mark Levin post today in National Review's Corner:

http://corner.nationalreview.com/05_12_04_corner-archive.asp#084317

"MCCAIN AND THE CHURCH EFFECT [Mark R. Levin]

Ok, let me throw this out there. I actually believe that John McCain is about to do as much damage to the CIA's ability to function as Frank Church did in the 1970s.

I was prodded to do a little more research on the subject of the UN Convention Against Torture and the rest, and the Congressional Research Service noted that in his transmittal of the Convention for ratification, President Reagan provided that the definition of torture was to be interpreted in a "relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned." "... the State Department suggested that rough treatment falling into the category of police brutality, 'while deplorable, does not amount to 'torture' for purposes of the Convention, which is 'usually reserved for extreme, deliberate, and unusually cruel practices ... [such as] sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging positions that cause extreme pain.'"

McCain's Amendment flies in the face of the concerns President Reagan himself had with defining torture down--and in McCain's case, defining it to include "undignified" treatment. Anyone who's dealt with the DMV has been subjected to "undignified" treatment. I think Reagan was right, and McCain is wrong. There is no compelling reason to change course here. Indeed, the compelling case is to leave well enough alone. Our government is reacting to the false allegations of European bureaucrats, phony human rights groups, and the like. These are the same people who refused to lift a finger to help stop the widespread murder, torture and rape of untold numbers of Iraqis. They are in no position to lecture us--or more accurately, we ought not be taking direction from them.

McCain is putting our military and intelligence interrogators in an impossible position. He seeks to expand the definition of torture without defining it (leaving it first to the interrogator to make a best guess, and then a court to make the final call) and he seeks to apply the law outside U.S. territory--exactly what Reagan rejected. And as I've said repeatedly, where is the evidence of widespread "torture" which is presumably the basis for changing course? I remain mystified how we've reached this point. But, then again, I was mystified by the great rush to pass unconstitutional limits on political speech, too. McCain was the driving force behind that, and if anything, we should be more skeptical about his "reform" agenda, not less."

Dan,

You just don't get it. Tom is a lawyer and Robin either is now, or has experience, as, a government official in the defense field. Both of them are saying that the civil legal threat is real here. The implications of what they are saying are far, far worse than you imagine.

Consider for a moment what the mere threat of "civil discovery" for civil lawsuits arising from McCain's Amendment will represent to American intelligence and the foreign governments we have to work with.

I repeat, we are not just talking criminal courts here.

We are also talking about civil suits shopped to the most left wing activist federal judge that can be found under the Federal 9th Circuit Court of Appeals. A Judge protected from any threat of impeachment by the Senate Democratic leadership and Sen. John McCain's Gang of 14.

There is no limit to the amount of American intelligence methods and relationships that can be blown to the public via that route.

That will dry up any cooperation on Interrogation with any foreign government.

It will dry up foreign cooperation on anything related to the handling of captured Al-Qaeda.

Face facts, the McCain Amendment is pure evil. It is pure evil because it will get thousands of Americans and millions of non-Americans needlessly killed by making it impossible to win via destroying American intelligence and forcing endless escalations of the violence.

Just like its Leftist backers want.

Those supporting the McCain Amendment are enemies of the United State or their willing, stupid, deluded, or gutless enablers.

There is no middle ground, nor room for compromise.

And those are just the first order effects.

Consider the effects on American Rule of Law when you have a ruthless American Chief Exectutive who is in effect given Congressional approval to use the Presidential pardon power to obstruct justice in national security matters.

The final outcomes are unknowable, but can only be bad for the Constitution in the long run. It is the nature of politics that given an inch, people will take a mile and the shadow of national security reaches deeply into domestic affairs in this war.

For example, do we really want to create a rogue intelligence and secret police entity utterly dependent on his discretionary use of the presidential pardon power to operate, and thus are his personal attack dogs for all HIS ENEMIES foreign and domestic.

That is only one of the earliest second order effects of McCain's legislation, there are many more on his slippery slope to hell.

I am still undecided about critical issues here.

I believe Trent (#32) makes the case that the law is poorly worded and a really bad law no matter what your opinion on torture is.

If this is true, then the issue of torture is really moot, as the vagueness of the definition and the bad construction of the ammendment trump the over-arching policy questions. This is an extremely important point to make, as people who may not support torture would also not want the after-effects of this wording.

Dan Markin,

Check out the link to the Congressional analysis posted by J.D. Shaw in his post No. 16. I'll repeat it and quote a section which is critical (my emphasis in the text). The McCain amendment does not just criminalize torture without defining what torture is (i.e., it may be unconstitutional on its face) but it also gives terrorists captured and held abroad the same rights against "mistreatment" as American citizens held in nasty state prisons.

http://www.fas.org/sgp/crs/intel/RS22312.pdf

"The second provision of S.Amdt. 1977 prohibits persons in the custody or under the control of the U.S. government, regardless of their nationality or physical location, from being subjected to “cruel, inhuman, or degrading treatment or punishment.” The amendment specifies that this restriction is without geographical limitation as to where and when the government must abide by it. Unlike the first section of S.Amdt. 1977, this provision covers not only DOD activities, but also intelligence and law enforcement activities occurring both inside and outside the United States. It does not appear that this provision would prevent U.S. agencies from transferring persons to other states where those persons would face “cruel, inhuman, or degrading treatment or punishment,” so long as such persons were no longer in custody or under control of the United States, though such transfers might otherwise be limited by applicable treaty and statute provisions. S.Amdt. 1977 also provides that this provision may “not be superseded, except by a provision of law enacted after the date of the enactment of this act which specifically repeals, modifies, or supersedes the provisions of this section.” In interpreting whether treatment falls below this standard, the amendment defines “cruel, unusual, and inhuman treatment or punishment” to cover those acts prohibited under the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as stated in U.S. reservations to the U.N. Convention Against Torture and Other Forms of Cruel and Inhuman or Degrading Treatment or Punishment (CAT)."

The McCain amendment does more than criminalize torture in all instances, and it is all the other things it does which make it so dangerous.

McCain would basically inflict an American version of the International Criminal Court on our armed forces and intelligence agencies. It will do to the war on terror what the McCain-Feingold bill did to the First Amendment.

Senator McCain's repeated misjudgments have shown him to be utterly unfit for national office.

Dan Markin,

One more point. Your first post in this thread said the McCain amendment has a built-in way out in the form of allowing a secret annex to the military interrogation protocols.

Not.

Here's a quote from the Congressional analysis citation above:

"S.Amdt. 1977 also provides that this provision may “not be superseded, except by a provision of law enacted after the date of the enactment of this act which specifically repeals, modifies, or supersedes the provisions of this section.”"

The exception allowed for torture in the secret annex to the interrogation protocol is taken away by the provision, "may not be superceded, except by a provision of this law enacted after the date of the enactment of this act ..."

You have to look for the legal weasel words.

You guys have convinced me.

I am against torture, and feel that we should make some sort of legal stand to show that we are not with the barbarians. It doesn't work, and it hurts our country.

Having said that, the ammendment that McCain is putting forth does a great injustice to our country and should not be passed, in my opinion.

Now McCain has said several times that he is open to compromise, although he keeps refusing to get pinned down on just what the word "compromise" means.

Let's hope that the hardliners on the right such as Cheney work with the far left and the middle to get something that not only reflects our values, but is more than a "feel good" kind of law. Geesh. At least word the thing better.

This amendment has McCain written all over it. I love the guy and honor his service, but there is something about him that when he sees a problem there must be a government solution you can slap over it. The campaign finance bill is exactly the same. Its like he doesnt realize or doesnt care that just because there is a problem, the government solution can easily make things worse. He needs some kind of policy guru to craft some smart legislation that does what he intends without the nasty unintended(?) consequences.

Trent knows that I have great respect for him and have had such since the old days of the GEnie forums during the Gulf War, nonetheless I do not want to leave people with the wrong impression. Trent mistakenly states that "Robin either is now, or has experience, as, a government official in the defense field".

While I have in the past worked in the defense field in minor roles, I have not been nor am I now a government official. While I have some experience in the legal field as well, I have for many years made it a policy not to play internet resume.

Mark,

You said:

"He needs some kind of policy guru to craft some smart legislation that does what he intends without the nasty unintended(?) consequences."

When McCain's stuff comes out big-time nasty so often, you must admit, "It's Not a BugIt's a Feature!"

Mark,

You said:

"He needs some kind of policy guru to craft some smart legislation that does what he intends without the nasty unintended(?) consequences."

When McCain's stuff comes out big-time nasty so often, you must admit, "It's Not a Bug, It's a Feature!"

There is no middle ground, nor room for compromise.

I believe there is middle ground. Keep the part of the McCain bill that requires compliance with the DOD's own field mannual, which I presume has clear standards that can guide the people involved. Drop the part of the McCain bill that requires compliance with general Constitutional standards that have never been applied, interpreted or developed outside the American criminal justice system.

I should note that some have posited the view that the second prong does not exist. Andrew McCarthy, a former federal prosucutor makes this point. Since these Constitutional provisions only address judicial proceedings involving criminal defendants, "it is all show and no substance."

Not so, says the Congressional Research paper cited above By making the Constitutional prohibitions applicable "regardless of their geographic location or nationality," extending constitutional protections to people and places outside the criminal justice system is precisely what is intended.

So which is it? Does the bill try to fit a square peg in a round hole? Or are the pegs and holes merely illusions?

While I have in the past worked in the defense field in minor roles, I have not been nor am I now a government official. While I have some experience in the legal field as well, I have for many years made it a policy not to play internet resume.

Robin,

Sorry about that, my bad.

To the contrary, Trent, I was very flattered. My apology for the necessity.

PD Shaw,

McCarthy referred to incarceration of criminal accused. When he wrote that, Mark Levin had not raised the issue of possible civil liability, and McCarthy was not all considering civil liabilty. He was a career prosecutor, not a civil litigator.

McCain was not thinking, period.

I used to be a civil litigator, during which time I brought federal civil rights cases for excessive force, mistreatment in jail, etc., though I mostly handled real estate & development litigation. That means I have some expertise here.

Courts in construing legislation in new fields such as the McCain amendment will always, always first consider the plain meaning of the statutes themselves in interpreting them. Only when those are ambiguous will they consult the legislative history.

The McCain amendment on its face says that any prisoners in American custody inside and outside the U.S., however that custody arose, must be treated (which includes interrogated) in accordance with the prohibitions of the Fifth, Eighth and Fourteenth Amendments to the Constitution concerning cruel and degrading punishment. This is reasonably clear - the McCain amendment says courts are to use the definitions created by scores of years of federal case law to determine what unlawful treatment is.

This provides the judicial system with adequate guidance on the standards to be used in civil suits for mistreatment of prisoners. The definitional standards for interpretion of statutes in criminal prosecution are stiffer than in civil litigation. It might be difficult to prosecute people criminally for mistreating prisoners under the McCain amendment due to its possible vagueness, but the standards for civil liability are looser.

As I said before, making the McCain amendment work as purportedly intended will require more work and law than legalizing torture. The McCain amendment is grandstanding pure and simple - it is not intended to be practical, and sure isn't.

PD Shaw said:

I believe there is middle ground.

No there isn't.

Compromise is only possible with a civil opponent with America’s interests at heart. That is not the case here.

Those on the other side are the enemy and only have the terrorists interest at heart. They want America to lose and they lie every chance they see it is to their advantage.

McCain is an opportunist pandering to America's enemies because our Al-Jazeera Main Stream Media will give him headlines for doing it.

McCain can no more be trusted on terrorist interrogation than he can for political free speech.

The National Review just put an editorial on the subject online. The critical part is this:

"In fairness, there are House Republicans willing to follow the White House's lead if it can present a compelling, politically salable way to modify the McCain amendment. So far it hasn't. Pushing McCain to drop the airy bromides and get specific would be a start. But the administration has to act fast, since the House looks prepared to surrender to McCain imminently."

I.e., the Bush administration's failure to lead on this subject is a major problem. The Bush administration has a consistent pattern of preferring damage control after the fact than avoiding problems through leadership. Leadership seems to be a special burden for President Bush - one which he avoids whenever possible, especially if that means he personally must make public statements.

Note also that President Bush seems not to have vetoed any bills during his entire time in office, even when he admitted those were unconstitutional, such as the McCain-Feingold Act. So he will almost certainly sign a Defense Department appropriation bill containing the McCain amendment, bleating the while about how awful it is, and make the rest of us pay for his lack of moral fibre.

The cowardice of President George W. Bush will get thousands of us killed for this, and more later after he lets Iran's nutball regime produce nuclear weapons to use on us and others.

Here's a link to the NRO editorial:

http://www.nationalreview.com/editorial/editors200512091856.asp

Trent:

I have no doubt that there are realistic concerns as far as civil lawsuits are concerned, though I would note that in so doing we've sort of shifted the discussion away from the whole issue of interrogation techniques towards the legal niceties of the McCain Amendment, something that I wouldn't have a problem with if we agreed on the first point, but from what I'm seeing I don't think that we do.

What you are essentially saying is that because there are looney lefty judges out there who will do everything they can to undermine the war effort and expose our interrogation techniques to the general public that we should never pass any restrictions or regulations on interrogation techniques whatsoever. In addition to being one hell of a slippery slope argument (and I'm skeptical that the Gang of 14 would protect said judges from impeachment), the problem here would seem to me to be the judges rather than the McCain Amendment itself. If we have to dift some looney judges to make this thing work then so much the better.

I'm also think that your fears are something of a straw man argument. There's nothing that exists now that prevents a president from engaging in all manner of illegal activity and then using his pardon power to cover it up. What McCain seems to understand is that necessity sometimes trumps the law and that there is a mechanism with which to address that if it ever need occur. The fact that he recognizes this is one of the reasons that I think he's thought this through seriously a lot more than others here have.

Tom Holsinger:

I strongly suspect that many commentators on this issue are allowing their personal animosity for Senator McCain on other issues to influence their judgement on this one. As far as I understand it from reading your posts, you believe that torture should be open as a legitimate option for US interrogators in a rare series of circumstances. I agree with that to a point, but I do think that legislation is needed to establish protocol for interrogation given that the absence of one can be shown, by the military's own reports, to have been a major contributing factor in the instances of abuses that have occurred.

I'm also with PD Shaw in #41 who notes that according to Andrew McCarthy the second prong of the bill, while sounding nice (or omnious, depending on one's take), simply speaking does not exist.

As to the issue of civil liabilities, I guess where we part ways (and all due deference to you as the lawyer here, Tom) is that there are people suing right now here and in Europe in an effort to shut down US interrogation efforts. There have been people who for the last several decades have been suing to try and make sure that no serious police work is done. I am failing to see how any of that is going to change in the event that the McCain Amendment is ratified - it's not as though all of these people are simply going to just go away if the Amendment is voted down.

Of course, to a certain extent it seems we're going to find out one way or another which of us is right since it appears, by all accounts, that the Amendment is going to pass and we all seem to agree that the chances of Bush using his first veto on this is next none (and rather irrelavent, is the Amendment was passed in the Senate by enough of a super-majority that they could easily override the veto).

Dan,

There are two major parts to the McCain amendment - one prohibits torture as U.S. government has defined it to date, and the other gives terrorists the equivalent of constitutional protection against "mistreatment". My posts have repeatedly made this distinction and complained more vociferously about the latter - that's the one which creates civil liability under 42 U.S.C. 1983.

Daniel Markham and Michael Buehner understand this difference - Dan said it was critical in changing his mind about the McCain amendment.

You have never admitted that such a difference exists. At the moment this only raises questions about your judgment.

I'm also with PD Shaw in #41 who notes that according to Andrew McCarthy the second prong of the bill, while sounding nice (or omnious, depending on one's take), simply speaking does not exist.

I actually don't agree with A.M. on that point, and was merely pointing out differing opinions. Another view, this time from the Left, is offered by Professor Lederman who opines that the second prong does exist and will bar CIA used techniques such as "long time standing," "cold cell" and "waterboarding" and possibly even slaps and grabs:

These techniques . . . would very likely be deemed conduct that "shocks the conscience," [the due process test,] and that therefore would be forbidden by the McCain Amendment. . . . I should caution, however, that there is no judicial precedent for applying the "shocks the conscience" standard in the context of interrogations of high-level international terrorism suspects, and therefore there is no way to know for certain whether the McCain Amendment would prohibit even such harsh techniques.

My problem is not so much that waterboarding or slaps might be illegal, its that the people in the room won't know whether its illegal. If you've got one group of lawyers saying the second prong is an empty shell and another group of lawyers saying terrorists need to be interrogated like civilian criminals (which I interpret as a no coersion standard), I have to assume that we would be better off without the bill. That said, I still support the first prong of McCain's bill.

Tom Holsinger:

I thought I had acknowledged a distinction between issues over the prohibition of torture vs. the civil liability distinction in the comments - if not, I certainly tried to. The difference is that I don't think that the civil liability distinction is going to lead to the mass proliferation of lawsuits (well, more than there are now) with regard to interrogation. The argument that some lefty judges will actively try to undermine our national security because of the Amendment likewise holds little water with me because I think that these judges, not the Amendment iself, are at the root of the problem.

If you want to question my judgement because of these views, you are well within your rights to do so. I readily acknowledge that you know more than I do with respect to the issue of law.

Dan:

I'm with Trent. As long as the legal culture is as it is, judges should get no new words to work with.

I'm skeptical that the Gang of 14 would protect said judges from impeachment

I am skeptical that any federal judges will ever be impeached. It has certainly not happened in my lifetime for ideological/"bad decision" reasons (and not for lack of cause during those 39 years). The only judges that have been impeached have been for personal crimes.

the problem here would seem to me to be the judges rather than the McCain Amendment itself.

Perhaps. But what's easier -- not passing a not-yet-law on the grounds of what liberal judges will do with it or impeaching a score of judges or giving the Jurist Class a deep-cleansing enema? To ask the question is to answer it.

Dan,

I have 28 years experience as a civil litigator, which includes several thousand hours as plaintiffs' counsel in civil rights litigation involving excessive force by law enforcement officers and brutality in jails. At the moment the state of California pays me six digits to, among other things, second-guess law enforcement officers concerning their use of force. I am thoroughly familiar with the interface between criminal law and civil law.

I am also familiar with the types of lawsuits brought to force jails and prisons to obey their own rules and regulations, and in general obey federal and state laws concerning treatment of prisoners. This is, among other things, my day job.

42 USC 1983 states (my emphasis):

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable ..."

My post No. 44 above stated (my emphasis):

"... Courts in construing legislation in new fields such as the McCain amendment will always, always first consider the plain meaning of the statutes themselves in interpreting them. Only when those are ambiguous will they consult the legislative history. The McCain amendment on its face says that any prisoners in American custody inside and outside the U.S., however that custody arose, must be treated (which includes interrogated) in accordance with the prohibitions of the Fifth, Eighth and Fourteenth Amendments to the Constitution concerning cruel and degrading punishment ..."

The plain meaning of 42 USC 1983 read in conjunction with the McCain amendment will give foreign terrorist prisoners held by the U.S. the right to sue their captors and and the U.S. government not merely for damages, but in equity (writ of mandate) to enforce the requirements of the McCain amendment.

I.e., you and Trent are dead wrong in talking about "rogue" judges here. Judicial oversight and enforcement of the McCain amendment will happen automatically as a consequence of existing federal laws. Every awful thing that Trent predicts, and more, will occur as an inherent result of the McCain amendment's interaction with existing federal law.

THIS is why I said that an enormous amount of additional legislation will be necessary to avoid the undesirable side-effects of the McCain amendment - more in my judgment than would be necessary to permit but adequately regulate the occasional use of torture.

Andrew McCarthy has never been a civil litigator. The concept of civil suits arising from the McCain amendment has not occurred to him – his comment was directed at the criminal side of the McCain amendment. The civil liability issue did occur to Mark Levin, who is (among other things) a civil litigator. Levin is qualified to speak on this subject, while McCarthy isn’t. Levin mentioned it briefly as a problem that had only then been brought to his attention on NRO’s Corner by an email to Rich Lowry. Here are Levin’s and Lowry’s (consecutive) Corner posts:

http://corner.nationalreview.com/05_12_04_corner-archive.asp#084272
http://corner.nationalreview.com/05_12_04_corner-archive.asp#084272

"RE: RICH'S EMAILER [Mark R. Levin] Interestingly, the emailer speaks of civil immunity which, of course, has nothing to do with criminal immunity as there would be no criminal immunity. As for civil immunity, in the federal system, the burden rests on the official to demonstrate he was acting reasonably and in his ofiicial capacity. Our scenario involves an official knowingly violating the law. While McCain has said he believes torture, undignified treatment, or whatever, could be used in a ticking time bomb situation (whatever that is), he does not codify it. So, his pronouncements don't have the force of his law. But the emailer does raise an interesting point: if McCain believes there are occasions when an interrogator could use torture, undignified treatment, or whatever, then he should affirmatively shield that official, i.e., include language in his amendment granting immunity.
Posted at 05:31 PM

SUBJECT: WHAT MARK SAID [Rich Lowry ]
E-mail:

Rich, The legal system already deals with these sorts of situations. It is illegal for a police officer to use force against an individual absent certain circumstances. Because we don't want to paralyze the police with constant second-guessing, however, we give them qualified immunity. By this, officers are immune from civil suit if, at the time of a use of force that turned out to be based on an officer's misunderstanding of circumstances, the officer's understanding was reasonable (or something like that -- it's been a while since I dealt with this sort of law on a regular basis). It wouldn't take much to apply something similar to a case where a military officer thought there was a ticking bomb (to say nothing of prosecution in cases like this being exceptionally unlikely).

Posted at 05:08 PM"

Your comments are dead on, Tom. But I will be honest and say that with the recent undermining of Ex Parte Quirin by the Supreme Court we may see more silliness using the civil courts to undermine our ability to wage war outside the rather narrow subject of interrogation itself.

Postscript:

Suits in equity (aka petitions for writs of mandate) by prisoners, especially class actions, seeking judicial oversight in requiring the federal government to comply with the McCain amendment will do far more damage to national security than suits for damages against the government or individual federal officers. The civil discovery involved in the mandamus proceedings will be of much greater scope than in the actions for damages.

I.e., giving individual federal officers immunity from suits for damages won't help a bit.

Protecting national security from the McCain amendment will not be simple. It will require an enormous amount of work and legislation because of all the ways equitable suits to enforce the McCain amendment can harm national security. Worse, much of that can only be determined from experience, i.e., we'll have to suffer the damage from loopholes first just to find the bloody loopholes.

Tom:

First of all, thank you for your lengthy reply (which I'm still trying to digest, as I don't have your background in law). In it, you mention "an enormous amount of additional legislation will be necessary to avoid the undesirable side-effects of the McCain amendment" and I'm genuinely curious of what that would have to consist of.

Dan,

It would help if you read my posts in this thread. I suggest you try No. 18 above first.

Then add the following:

f) enactment of a federal security court law along the lines of this 2002 article by a law professor who used to be an FBI consultant:
http://www.nytimes.com/2002/06/08/opinion/08RISH.html

That link only goes to a New York Times archive you must pay to access, so I'll repost the whole article below.

This new federal security court, in addition to or in lieu of the duties Professor Rishikof proposes, would oversee all federal facilities holding terrorists, through "special masters", to ensure that they obey the strictures of the McCain amendment. It would have exclusive jurisdiction to hear all matters pertaining to prisoner interrogation and treatment. Appeals from it would likewise be secret, to the D.C. Circuit Court of Appeals.

I do not agree with Professior Rishikof concernning many of his details, but something like the new federal security court he describes would be essential to implementation of the McCain amendment's purported objectives without the catastrophic side-effects Trent and I have described.

And trust me, the statutes implementing such a court would be eye-watering, complicated and difficult to implement.

Here's the article. It was free when published so I can repost it in full.

"A New Court for Terrorism

By Harvey Rishikof June 8, 2002

Prosecuting terrorism is compromising our traditional court structures. The courts that are currently trying to handle such cases are clearly inappropriate. What we need is a specialized, secure and protected federal court dedicated to matters involving domestic and international security.

The creation of military commissions to deal with the detention and trial of "certain noncitizens" in the war against terrorism has sparked controversy not only at home but with our most trusted allies. Britain's decision not to deliver its captives in the Afghan conflict into our custody — because of some differences in interpretation of the Geneva Conventions — is only the most prominent of what could be many disagreements with allies over legal process.

Although the president may have the constitutional power to create the military commissions he wants, the political price and the cost to our legal system are too high to justify them. Similarly, the U.S.A. Patriot Act and other legislation — by expanding the attorney general's power over non-citizens and resident aliens, and by lowering the standards for judicial approval of surveillance — are likely to generate legal challenges that will last for years.

Our federal court system performed admirably both in the Oklahoma bombing case and again after the first bombing of the World Trade Center. But that system was not built to try such cases, and the effort is taking a toll. The stresses have been evident in the sparring over use of a secret witness in the John Walker Lindh case. Perceived dangers to the grand jury system motivated Judge Shira A. Scheindlin in New York to dismiss perjury charges against Osama Awadallah, a student who knew one of the Sept. 11 hijackers, while the charging of attorney Lynne Stewart for conspiring to help her client Sheik Omar Abdel Rahman threatened the right to counsel. In short, the war on terror has already endangered normal federal trial-court processes.

A specialized federal security court could accommodate the particular challenges of prosecuting terrorism cases without undermining constitutional principles. We already have specialized courts in the federal system, for bankruptcy, patents, copyrights, tax matters and international trade. In the arena of national security, the Foreign Intelligence Surveillance Act in 1978 also established a Foreign Intelligence Surveillance Court that, under the Patriot Act, has been expanded from seven to 11 members. Its main function is to review requests from federal agencies for electronic surveillance or physical searches of foreign powers or their agents, including American citizens.

One option is to expand the jurisdiction of the Foreign Intelligence Surveillance Court and make it a trial court for national security matters. Appeals from this court would go to a panel with ultimate review by the Supreme Court. Selection of judges to such a court should parallel the process used in other federal courts.

What would a federal trial court devoted to security cases do? It would craft procedures for secret evidence gathered by sources and methods that should not be disclosed. It would have jurisdiction over matters that involve citizens and noncitizens operating in a loose network for terrorist purposes, whether here or abroad, as in the embassy attacks in Kenya and Tanzania in 1998. Such a court would spur the creation of an appropriately trained defense bar — with security clearances — employed in much the way federal public defenders are.

A national security court, with its trials as open as possible, would give our allies needed reassurance, though the court would need to forgo the death penalty in order to ensure our allies would extradite terrorists. Having a specialized court would also make it possible for us to designate and fortify an existing federal courthouse to hold terrorism trials, which would improve security for all participants. A specialized judicial bench could also travel to locations like Camp X-Ray to conduct hearings.

The people we are fighting do not fit into our traditional legal classifications. We can continue to improvise our way through, compromising our federal criminal procedures and alienating our allies, or we can demonstrate our commitment to the rule of law by creating an institution that can handle new challenges without damaging our constitutional principles.

Harvey Rishikof, a former F.B.I. legal counsel, is a law professor at Roger Williams University School of Law."