McCain's bill is being written because the US has gone anyway from its historic role of providing guidance and support to internatinal treties and laws to set standards for behavior during wartime. McCAin correctly sees torture as something that has ruined our image as we fight for the hearts and minds of the world in the struggele agianst Jihadist terror. The problems you mention are and were avoidable if in the beginning the Bush administration had acted wisely by going to Congress and starting a debate and passing new laws to deal with the situation,i.e. how do we deal with captured terrorists. We were able to do this to fight terrorism domestically by passing and now redebating the Patriot Act. Nor were the cowards of the Republican party holding elected offices in either the Senate or the House willing to excercise their advise and consent responsiblities as stated in the constitution. Instead we have seen in the house the rise of the Reichstag type voting.

So for all the people whom are upset with the McCain bill and what it means to OUR national security you need to look in the mirror. Unintended consequences are always there but a good faith effort in the begining would have alleviated many of the problems we now currently face. Nor does white washing our laws to defeat the Jihadists enhance our security. In only means more acts of cowardice like Joe Katzman advocation of torture and political correctness.

FYI...
Glen reynolds has commented on this post.

For the billionth time, the McCain amendment has nothing to do with banning torture. Torture is already illegal. Instead it extends what is banned with vague languange that can mean just about anything.

From the Congressional analysis
"In interpreting whether treatment falls below this standard, the amendment defines "cruel, unusual, and unhuman treatment or punishment" to cover those acts prohibited under the Fifth, Eighth, and Fourteenth Amendments to the Constitution"

Amendment V
" No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury , except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself , nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation. "

Emphasis mine. Critical note here: the Fifth Amendment is what spells out the right to non self-incrimination, and from that the Right to Remain Silent. It is also what the Miranda decision was built on.
So here is where we stand, the McCain amendment defines cruel, unusual, and inhuman to be that which violates the prohibitions of the 5th (also 8th and 14th) Amendments. The right to remain silent as well as Miranda rights have been ruled inherent to the 5th. This amendment extends to all persons in US custody anywhere around the globe. Unless I am sorely mistaken, the only way this amendment can be read is that terrorist detainees must be preferred the right against self-incrimination, and hence their right to remain silent, assumedly even to the reading of their Miranda warning.
I suppose the good news is defining torture is no longer an issue. It would seem that interogation of any kind is out the window, at least as soon as the 9th Circuit gets ahold of this. Is McCain about to codify our entire GWOT into a police action?

Glenn Reynolds is entirely correct that 42 U.S.C. 1983 does not apply to the federal government. I should have thought of that.

I do recall lawsuits by individual criminal accused and prisoners against federal officers for excessive force which might be used in this context but the potential harm to national security I feared would be far less in such actions. The issues and civil discovery in individual actions for damages are limited, and the courts involved could issue protective orders tailored to the circumstances of each separate case which would not be possible in civil class actions.

So I blew it.

I appreciate the clarification in any event. As I've said in previous threads, there has not been little discussion over the specifics. Where do we stand?

1) McCain has been pitching his bill as a mere codification of the Army Field Manual. This has a lot of appeal to people concerned that the standards are not unduly restrictive or vague. We're talking about what might be the most respected public institution in the country. As critics of the administration have pointed out, the "more important" provision, however, is the one that bans "cruel, inhuman, or degrading treatment or punishment." According to McCain, this provision is already the law. And as Tom Holsinger has pointed out, its not McCain's intent that becomes the law, but the actual words in the bill.

2) Unlike the field manual provision, the ban on "cruel, inhuman, or degrading treatment or punishment" incorporates judicial standards arising under the criminal provisions of the U.S. Constitution. We don't know for certain what this means. Since military and foreign intelligence operations are so alien to these Constitutional provisions, the argument can be made that the "judicial standards" are actually a null set. On the other hand, if criminal rights are fully incorporated into foreign operations, then one might argue that U.S. troops must "Mirandize" detainees. The more likely conclusion appears to be that this provision employs the "shock the conscience" test under the due process clause. In other words, no clear standard and the big question is whose conscience are we talking about.

3) While it appears that a Section 1983 civil rights lawsuit against the federal government may not be possible, the meaning of the ban against "cruel, inhuman, or degrading treatment or punishment" could be brought to a federal court by habeas corpus petition, seeking relief for certain inalienable-rights-to-be-named-later. Since this type of habeas petition was unknown in our country until 2004, we don't know what kind of cases the court might accept. Another venue is criminal court, though offenses by members of the military might be brought before a military tribunal. Where do CIA intelligence officers get tried? Tom Holsinger makes the case for special courts in this area, both to keep intelligence secret and for expertise.

4) To the extent that the U.S. wants to pursue a criminal conviction based on information obtained by coercion in a foreign country, we are going to have a problem -- the court will ban it. Its not actually a bad idea for interrogators to know and understand the constitutional requirements, but criminal convictions are not the only purpose behind compelling information.

5) It still appears to me that there are a number of intangibles that come into play if we are hoping that our men and women will simply violate the McCain amendment if necessary. Civil liability still seems a problem, as does the possibility of demotion or discharge. Even if ultimately pardoned of criminal acts, there are also the issues of reputation and attorney's fees. And then, of course, there is the "unintended" possibility that they will simply comply with the McCain amendment.

6) Preston asks the big questions about the interaction between the McCain amendment and the Padilla case and the Col. Allen West case.

I am not a lawyer, so I don't understand the niceties of the law. I do, however, understand that some people always want us to fight wars with one hand tied behind our backs.

I believe our official policy should be that when our enemy subscribes to the Geneva Convention then we will obey it to the letter.

However, when our enemy is a group of killers who have no sovereign loyalty and subscribe to no standards of prisoner treatment, then we should have a policy that says, The way we treat our prisoners is a military secret. We want to treat them humanely, but we reserve the right to use stringent interrogation techniques up to and including torture/execution. That does not mean we would actually use these techniques, just that we reserve the right to.

IMHO we must keep these thugs guessing as to how they will be treated. When they decided to adopt terror as their tactic and claimed no sovereign loyalty they gave up all claim to humane treatment when they are captured.

>>I believe our official policy should be that when our enemy subscribes to the Geneva Convention then we will obey it to the letter.

Part of being the good guys means not compromising moral principles, even if the bad guys do. I'm always amused when people start justifying atrocities with "but the other side does it" or "the other side is unworthy of humane treatment." It's particularly pathetic in this case, where the enemy is a relatively small band of not-particularly smart or well organized thugs.

A more practical problem here is the use of "we" to describe what's going to happen, as in

>>The way we treat our prisoners is a military secret.

"We" will have exactly no say in how the USG treats prisoners -- nobody here will be involved in the decision making. This is especially true since "we" will be on the wrong side of the veil of secrecy surrounding such prisoner treatment. The people who make these decisions will likely be those who enjoy their job as interrogators, i.e. sadists.

The predictable consequence has already happened, notably the torture of innocent people and a huge PR disaster when the torture surfaces.

I believe that it is the best interest of these United States to take the moral high ground. We should not allow our behavior to be determined by the enemy. We saw what happened in Vietnam when we failed to win "hearts and minds".

Word on the street is the White House has embraced the McCain Amendment. As is. Scary. Looks like we will get to see if those of us worried about the unintended legal consequences were correct. I can hear the 9th circuit sharpening their knives.
At least Andrew Sullivan can back up from the ledge a little. His obsession with 'torture' make me think of the South Park episode with Mel Gibson. I dont read his blog nearly as much as I used to, and when i do catch up i come away with my head spinning wondering why the penalty for gay marriage is torture. Granted its usually late at night and im aggravated.

The McCain amendment is absolutely insane. It's not just about torture - it gives terrorists full 5th Amendment rights.

Soldiers in the field must now tell captured terrorists they have a right not to incriminate themselves - the Miranda warning - and stop asking questions if the terrorists say they don't want to talk.

john ryan, I think sticking to the high moral ground is useful in a "hearts and minds" approach to a civilizational war. But back up and read T.J. Madison and its clear that even if this law passes, skeptics will believe we are still torturing. And T.J. is an American (I believe) and not a member of the tin foil hat brigade.

But most importantly, John McCain has said we should torture when necessary (and face the consequences)

So I don't think were buying much world sympathy to support a poorly written law.

>>The McCain amendment is absolutely insane. It's not just about torture - it gives terrorists full 5th Amendment rights.

The fifth amendment seems to use the word "person" a whole lot. Not "citizen" or "non-terrorist", but "person". So the terrorists (and "suspected" terrorists, and whoever the government wants to call a terrorist this week) already have full 5th Amendment protection.

Since presumably these cases might involve the land or naval forces, the terrorists might not have constitutional access to a Grand Jury, of course.

"So the terrorists (and "suspected" terrorists, and whoever the government wants to call a terrorist this week) already have full 5th Amendment protection. "

Enemy combatants held in wartime dont necessarilly enjoy 5th amendment protections (Ex parte Quirin). See Johnson v. Eisentrager.

The problem here is that the Legislature is about to pass a law in tension with the Executive branch's authority to wage war. The constitution has not extended 5th Amendment protections to enemy combatants (legal or otherwise), but McCain is attempting to do so statuatorially. This is going back to the courts, and if you look at Rasul v Bush and the arguments made there it may not find as friendly a reception as we would hope, even with the new blood.

One of the things I would point out is that from personal experience information obtained by torture is admissible in a U.S. court over the objection that it is unconstitutional and unreliable.

In some instances.

But nobody cares.

It infuriates me that President Bush capitulated to McCain's fatuous posturing. This silliness will come back to bite us in very serious ways in the future.

TJ,

Your point about the 5th Amendment already applying to terrorists is imited to their criminal prosecution under American law. That was the case with John Walker Lindh, and it is the case with Padilla now that criminal charges have been brought against him. It does not yet apply when terrorists are interrogated as prisoners abroad. The Bill of Rights does not apply abroad - there are federal cases on that.

The McCain amendment is lunacy in that it changes this - it requires American combat forces in the field, military interrogators screening newly captured prisoners, and CIA interrogators questioning identified terrorists, TO STOP QUESTIONING THEM WHEN THEY ASSERT THEIR McCAIN-GIVEN 5th AMENDMENT RIGHTS.

While McCain obviously did not intend this, that is precisely what his amendment says, and the standard rule that the plain wording of a statute is used to interpret it, when it is unambiguous, applies. Actually that is a standard rule of interpreting any document - contracts, wills, deeds, subdivision CC&R's, etc., - there are actually more exceptions to this for contracts (professional words of art, etc.) than for statutes.

So we're stuck with the plain, lunatic, wording of the McCain amendment. And it isn't ready for prime time.