A Guest Editorial
By Thomas Holsinger
The major flaw in the McCain amendment about torture is that it will give enemy terrorists captured or held by American forces the right to sue the United States government for violating their civil rights, and thereby make it impossible for the United States to keep secret the information it obtains from interrogating them.
The protections provided by the U.S. Constitution for American citizens do not presently apply to foreign terrorists captured and held abroad, but the McCain amendment will change that. Its second provision prohibits the United States government from subjecting all persons in its custody or under its control to “cruel, inhuman or degrading punishment”, and defines that as covering those acts prohibited under the Fifth, Eighth and Fourteenth Amendments to the Constitution.
The federal civil rights statute, 42 U.S.C. 1983, gives all persons “within the jurisdiction” of the United States a private right of action to sue the United States government for damages and injunctive relief when they are deprived of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. The McCain amendment would be one of those laws, and give enemy terrorists abroad the same protection against “cruel, inhuman or degrading punishment” as American citizens have at home.
The danger here is less that captured terrorists will sue for money damages concerning alleged mistreatment as that they will sue for class action injunctive relief, i.e., judicial oversight of the facilities in which they are held. The state of California’s prison system is rightly subject to such a class action federal civil rights lawsuit right now concerning its disgracefully ineffective medical care for sick and injured prisoners.
The federal civil discovery system used in ordinary civil rights cases will be an absolute disaster for national security when used by terrorists claiming they’ve been mistreated, because there is no provision for secrecy in the normal rules for federal civil cases. And it is not just the information we’ve learned from interrogating terrorists which is at stake. The mere threat of disclosure of secret information in such lawsuits by terrorist prisoners will make the intelligence, military and security agencies of our foreign friends and allies loathe to provide us with secrets they’ve learned on their own.
No one in Washington appears to be at all aware of these side-effects of the McCain amendment. Much additional legislation will be necessary to protect the country from these side-effects, which poses a question as to whether the evils created by the McCain amendment will be greater than the evils it purports to prevent.
A Congressional Analysis of the McCain Amendment's language can be found here http://www.fas.org/sgp/crs/intel/RS22312.pdf
Recent Winds threads with extensive comments on the McCain Amendment are:
Duly Chastened and Eager to Learn
by Dan Darling on December 11, 2005 06:57 AM
Count me out on that one, Trent
by Dan Darling at December 7, 2005 07:11 PM
Safe, Legal & Rare -- America's Political Parties Defined
by Trent Telenko at December 7, 2005 01:56 PM