A Legal (and Moral) Victory Over Torture

Those in favor of a “gloves off” approach to the war on terror are finding themselves increasingly isolated both politically and legally. Last week, Secretary of State Rice made front-page news with her pronouncement that “As a matter of U.S. policy, the United States’ obligations under the CAT [the Convention Against Torture], which prohibits, of course, cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.” Julian has argued that this represented a shift in policy, although Marty Lederman over at Balkinization disagrees.

Today’s news is more significant. President Bush, after months of opposition by his office (and notably personal lobbying by Vice President Cheney), has accepted Senator John McCain’s amendment to the Defense Appropriations Bill. The McCain Amendment, as it is known, will ban all U.S. government personnel from engaging in cruel, inhuman or degrading treatment of detainees — which is defined in terms of the Due Process Clause’s “shock the conscience” standard — anywhere in the world. Evidently, even the CIA will be covered under the Bill, although Senator McCain did accept certain additional protections for civilian interrogators equivalent to those already available to military interrogators (I’m not an international criminal law expert, but it’s interesting to note that McCain was quick to disassociate these new protections from the superior orders defense denied at Nuremberg). Why the capitulation? Well, on Wednesday, the House of Representatives backed the McCain Amendment by a vote of 308-122, following an earlier 90-9 favorable vote by the Senate in October. Those votes suggest any President Bush veto of McCain’s amendment might not have withstood a Congressional override.

Obviously, this represents a moral victory for those opposed to torture, the kind of conduct witnessed at Abu Ghraib and extraordinary renditions, regardless of what the terrorists do. At the same time, from a legal perspective, the McCain Amendment may reflect a shift in the locus of power which has resided almost entirely with the Executive since 9/11. Senator McCain’s campaign signaled the willingness of certain legislators to take back a Congressional role in the conduct of U.S. foreign affairs, a role now cemented in an amendment that by all accounts will become law in the days ahead. Of course, perhaps the most important question will be whether these laws actually change U.S. conduct on the ground, and, in doing so, improve the United States’ moral standing in ways that advance (rather than restrain) further efforts to achieve success against terrorism in all its forms.