McCain’s Retreat


Now we can move forward and make sure that the whole world knows that, as the president has stated many times, we do not practice cruel, inhuman treatment or torture. John McCain, at the White House, December 15, sitting alongside George W. Bush

Concessions already obtained by the administration from Mr. McCain, and a separate amendment [agreed to by McCain] authored by Senator Lindsey Graham (R-S.C.), could prevent any foreign detainee from seeking relief in a U.S. court in the event that he was tortured. . . . Mr. Graham and Senator Carl M. Levin (D-Mich.) recently agreed [along with Senator McCain] to yet another administration provision that would—incredibly—allow evidence obtained by torture to be considered by military review panels (at Guantánamo.) Editorial, The Washington Post, December 16, the very day after Bush and McCain congratulated each other on ending human rights abuses, including torture, of U.S. prisoners anywhere in the world

Newspaper editorials after the McCain-Bush summit meeting cele- brating America’s dedication to human rights were glowing: “President Backs McCain on Abuse” ( The New York Times); “Bush Backs Down on Proposed Torture Ban” ( USA Today); “White House, McCain Reach Deal on Terror Suspect Torture Policy” ( The New York Sun); “Principled McCain Prevails Over the White House” ( Financial Times, U.S. edition, December 17/18)

In a few of the stories, those readers going beneath the headlines found harsh revelations of the shell game that McCain and Bush are playing. These discoveries add to the accelerating exposure of how George W. Bush—with the cooperation of the once principled John McCain and of other members of Congress—is engaging in the cruel and inhumane debasing of the values we are fighting for against homicidal terrorists.

To begin, McCain, before his White House rapprochement with the president, had accepted administration language in his human rights amendment to give paid legal counsel and a certain amount of legal protection to interrogators—including the CIA’s—accused of abusing prisoners. Their defense would be that a “person of ordinary sense and understanding would not know the practices were unlawful.” Also, as at the Nuremberg trials after World War II, the defendants would say they were only following orders.

But as Josh White pointed out in the December 16 Washington Post, if these orders were plainly illegal, they would have to be disobeyed. In that case, what penalties would the commanders themselves, who gave the unlawful orders, face— including the top of the command at the Defense Department, the Justice Department, and the White House?

The Bush administration pressured McCain to accept this additional language in fear that, eventually, courts would decide that U.S. “coercive interrogations” have indeed violated U.S. law and international treaties we have signed. The ACLU and human rights organizations have already filed lawsuits making these claims against high levels of the administration.

Much more serious— and ignored by most of the media—is an amendment— voted for by McCain—to the Defense Authorization bill by Lindsey Graham (R-South Carolina), Carl Levin (D-Michigan), and Jon Kyl (R-Arizona).

Tom Wilner, a constitutional lawyer who represents a number of Kuwaiti detainees (a/k/a prisoners) at Guantánamo, gets to the chilling core of the amendment:

“This amendment [which McCain has approved] tears the heart out of anything good that the McCain prohibition [against cruel, inhuman, and degrading treatment] does. It strips the right of habeas corpus from detainees at Guantánamo, prohibits them from suing U.S. officials for their treatment, and in new language slipped into the bill [during the House-Senate conference committee sessions] actually authorizes the tribunals at Guantánamo [for enemy combatants] to use statements obtained through coercion [including torture] as ‘probative’ [testimony]. That provision works a significant change of existing U.S. and international law and actually provides an incentive for U.S. officials or officials from other governments through [CIA] rendition [sending terrorism suspects to other countries to be tortured], to obtain such coerced statements.” (Emphasis added.)

Accordingly, Tom Wilner tells me, this “McCain/Graham/Levin/Kyl package is a disaster—a giant step backward for human rights. . . . By eliminating the Great Writ [habeas corpus] and authorizing the use of coercion, this amendment un- dermines the very foundation of our system.

“These changes far out- weigh the language for which Senator McCain has been so complimented, prohibiting the government from torturing or engaging in cruel, inhuman, or degrading treatment.”

Furthermore, how does this administration actually define torture anywhere? From a December 16 Washington Post editorial after Bush’s “surrender” to McCain: “Mr. Bush’s political appointees at the Justice Department [Alberto Gonzales at the top] and the Pentagon [Rumsfeld et al.] have redefined both ‘torture’ and ‘cruel, inhuman, and degrading treatment’ as not covering in all circumstances such CIA techniques as ‘waterboarding,’ or simulated drowning; ‘cold cell,’ the deliberate inducing of hypothermia; mock execution; and prolonged and painful ‘short-shackling.’ It has taken these positions, even though ‘cruel, inhuman, and degrading treatment’ as defined by the Senate [passage of the McCain amendment] covers everything that also would be prohibited by the Constitution [against prisoners held in the U.S.]. . . .

“[Accordingly,] the administration has adopted logic that accepts, in principle, the idea that the FBI could constitutionally use them on U.S. citizens in certain circumstances.” (Emphasis added.)

Eventually, I expect to see an announcement by John McCain declaring his candidacy for the presidency—as he reminds us of the principled stand he and George W. Bush took to show the world how deeply the United States values human rights.