I still haven't gotten around to reading all the comments in Tom Holsinger's legal flaws of the McCain Amendment, so if someone can give me a brief summary of any general conclusions that were reached I'd be interested to hear them. In particular, I'm interested in seeing if anyone actually bothered to answer some of Tom's legal criticisms and what they were. Contrary to one of the nastier e-mails that I got suggesting that I "caved in" under pressure, let me just say that I still support (as I thought was made clear here and here, but no matter) a lot of what seems to be the conceptual framework that those people who have been able to advocate for the amendment without labeling those who oppose them as being pro-torture. That kind of name-calling, especially when combined with some of the hysteria that one finds around this issue, reminds me far too much of some of the worst qualities of political correctness. My main problem is, as explained by Tom and seconded by at least one other lawyer, that under the framework of the McCain Amendment the following could occur:
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.
Now that goes rather far beyond the scope that I addressed in both of my posts concerning why I don't think that torture is an effective interrogation tactic (something that we can debate later if one so desires) and, to put it bluntly, that's more than I signed up for when I supported the McCain Amendment. As soon as somebody wants to take Tom to task on this one, I'll be more than happy to reinstate my earlier (and enthusiastic) support for the Amendment. What I got out of my own thread asking for just was that was that we seem to be on rather unclear ground as far as the law is concerned on a lot of this stuff.
Similarly, the story that surfaced yesterday in the New York Times about the NSA tapping domestic phone calls without a warrant strikes me as more bizarre than anything else since none of the evidence gathered could ever be used in a court case, which is the means through which the only actual terrorism case cited in the article (Iyman Faris, an al-Qaeda member working at the behest of Khalid Sheikh Mohammed) was resolved. Moreover, at least part of the data for Faris, as I understand it, came from documents and the like that were found with KSM at the time of his arrest - how hard is it to get a warrant from a judge for a wiretap on Faris if you have someone living in the US who was in recent contact with the 9/11 mastermind, for God's sake?
The other thing that boggles me about this is that al-Qaeda regularly assumes that its members are under surveillance whether they are or not and take steps to avoid it. Just going off Gunaratna, one of the lessons listed in the al-Qaeda training manual Declaration of Jihad Against the Nation's Tyrants (the same document that also instructs members to claim torture whether or not they fact were if captured in the West) lists 2 of the 18 lessons as relating to this - how to conceal communications and means of transportation and security planning.
Gunaratna also notes on p. 78:
An overt member should not be curious or inquisitive about matters that do not concern him; he should not discuss with others what he knows or hears; he should not carry on him the names and addresses of members; if his appearance is Islamic, he should refrain from visiting known troublespots - especially during times of heightened security and crackdowns by the authorities - and remain at home. He should be extremely guarded in use of the phone and should burn all correspondence after reading it.
Now granted that's the theory and how well the group actually follows its own rules (given the obvious enforcement problems) is another matter entirely and Italian police and counter-terrorism agencies in particular have done a remarkable job at gathering fairly voluminous dossiers on any number of unsavory characters by bugging and wiretapping their hideouts, but they've also managed to do so well within the limits of the Italian legal system and a judiciary that, as I understand it, is pretty much still stuck in what we would see as a pre-9/11 mentality.
But in addition to the general oddity of this whole story, the most vexing thing about this case is the manner in which it was argued according to the Times:
Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said. Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds.
Now granted this is the Times so I'm quite prepared to believe that this isn't the end of the story or that people in Congress on both sides of the aisle weren't aware that this has been going on for the last several years. The problem is that the rationale as cited in the first paragraph strikes me as a pretty cheap legal excuse, but then so does a lot of the stuff that's justified on the grounds of the commerce clause these days. So I'll defer to wiser minds than my own on this but I just have to say that based on the initial reporting, something definitely stinks.