The Legally Meaningless McCain Amendment
As Duncan notes below, President Bush has reached a deal with Senator John McCain on the so-called anti-torture bill. I agree with Duncan that as a political, and maybe as a moral matter, the bill is a victory for McCain and critics of the U.S. detainee policies. I disagree with Duncan, however, that the bill is a “legal victory”. As a legal matter, I think the bill is largely meaningless.
Human rights groups are declaring the final bill, which had been the subject of substantial negotiations, a complete victory. According to Human Rights First, “All U.S. personnel – the military, the CIA, everyone — will now be on notice that torture and abuse are illegal, and those who engage in it will be subject to prosecution. Secretary Rice toured Europe last week claiming this is U.S. policy — and now it will be a clear U.S. law. Practices like waterboarding, stress positions, sleep deprivation and hypothermia are off the table.”
Human Rights First is a great organization but they are stating their aspirations for the bill – not what the bill actually does…
(1) Torture has always been (since 1996) illegal under U.S. law, no matter where it takes place
I am distressed at how the media and otherwise smart and thoughtful lawyers have mischaracterized his bill as a ban on “torture.” Even President Bush says that this bill “prohibits” torture. But “torture”, as defined in the Convention against Torture, is already illegal under U.S. law, whether at home or abroad. This bill does not ban torture, at least as it is defined in U.S. treaty obligations and in U.S. law. This bill bans “cruel, inhuman, and degrading” treatment (CIDT), which as I will explain, is also already illegal under U.S. law.
(2) CIDT overseas is already illegal
As I noted, though, Secretary Rice’s statements last week clarified and perhaps shifted U.S. policy to accomplish the same exact legal result. This bill simply codifies the policy that the U.S. government has already adopted, and which arguably was always the policy of the U.S. government (although poorly enforced).
(3) The definition of CIDT has not changed
It is far from clear that practices like “waterboarding” are off the table. The McCain bill adopts the definition of “cruel, inhuman, and degrading” treatment that was already established U.S. law – “CIDT” equals the prohibitions imposed by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. “Waterboarding” may be immoral, but it still may not violate the U.S. Constitution. The bill adopts the lowest possible standard for CIDT. The only thing the bill arguably does is clarify that this ban applies to U.S. personnel overseas, which may not have been true before. (UPDATE: Although for a more aggressive reading of the language, see this article by Andrew McCarthy who suggests that the bill may actually require Mirandizing alleged terrorists overseas.
(4) There is still no enforcement mechanism
Moreover, the McCain bill itself is studiously silent on how it would be enforced (at least the last version I saw). Would alien detainees be able to bring civil suits? Does it create criminal liability? If so, what are the penalties? Who knows? The most likely mechanism are prosecutions under the Uniform Code of Military Justice, but what about CIA interrogators?
Everyone is kidding themselves if they think this is going to change the legal landscape dramatically, if at all. I think the bill is worth passing however, because I think it will push the Administration to focus on improving the implementation of the law regulating treatment of detainees. The implementation of the law has been the real problem, and hopefully, this bill will shift the focuse away from abstruse legal arguments and toward the nitty-gritty of trying to come up with effective but humane policies for interrogating detainees in the war on terrorism.