McCAIN HAS FOUGHT TO PREVENT TORTURE FROM BEING USED TO GAIN DUBIOUS EVIDENCE, BUT BARRIERS AGAINST TORTURE ARE NOT HIS ALONE TO DISMANTLE
28 September 2006
It was quite rightly John McCain's fight to demand that the US government never, under any circumstances, sanction or engage in torture. That doesn't mean the Arizona senator is ethically free to compromise on how much abuse is tolerable or whether due process can be pushed aside in favor of extreme interrogations and rigged prosecutions. Allowing any information obtained via banned abusive techniques to be presented as evidence, or sanctioning past cases of torture, erodes US constitutional principles and violates a basic moral obligation each human individual has to all others.
Mr. McCain, tragically, has first-hand experience of the indignities of torture, and is living proof that it does not necessarily "break" a prisoner or cause him to betray his fellow fighters or his cause. And so it makes perfect sense that he stand up and fight for a universal principle of ethical and responsible democratic government, that the ill-treatment of human beings for reasons of the state is totally impermissible and is a sign of tyranny and not of democracy.
But now he and his fellow rebels in the senate have reached a deal with the White House. That the proposed agreement prevents prosecution of agents who have committed crimes so far is a sign of its amoral and extralegal intent. It signals a monumental concession to those who would toss aside the principle of due process and replace it with an authoritarian regime.
These are not issues any one man can adopt as his own, for any reason; they are not menial differences of opinion on the political stage; they are not a question of ideology. These issues of physical abuse, torture-driven confessions, secret evidence, covert prison camps and carte blanche for government agents that commit crimes, are high moral issues and questions of allegiance to or outright opposition to the democratic system of American government.
So this compromise projects, in a very dangerous way, the idea that it seeks to serve as part of a framework designed to promote and permit a double standard that allows US personnel to commit acts we would claim make others sinister and enemies of a free system of democratic government.
When George W. Bush admitted, on 6 September 2006, that his government had been secretly operating a network of extralegal prisons through the CIA, in covert "black site" locations where harsh interrogation techniques were used, it set off a battle for the core values of American democracy. The president asked Congress to pass new legislation unilaterally reinterpreting the meaning of Common Article 3 of the Geneva Conventions, which prohibits "outrages upon human dignity".
The Bush administration took the position that this phrase was too vague to be of any use in the midst of the "fog of war" and so urged that Congress "clarify" the language, in order to better craft policies that would allow harsh interrogation without running afoul of international law. The move was intended to permit the use of techniques currently banned, and to grant immunity from prosecution to all government agents who may have already committed war crimes by violating the Geneva Conventions torture prohibitions.
This was certain to raise the ire of governments around the world, allied, enemy or non-aligned. And the military brass quickly came to their soldiers' defense, pointing out that to violate the principles of the Geneva Conventions, or to treat as "quaint and outmoded" prohibitions against torture in international law, is to condemn US military personnel, and possibly civilians, to precisely the type of harsh treatment the Bush administration claims it would reserve for terror suspects.
It would also signal a departure from allegiance to the rule of law, a fundamental tenet of free societies and an indispensable bulwark against arbitrary tyranny. So three Republican senators revolted, each with a military background and with knowledge about the usefulness, the risks, and the torment of torture. Sen. John McCain (R-AZ), who was tortured in a prison in North Vietnam, was adamant, for the second time in two years, that there could be no redefinition of Article 3 of the Geneva Conventions and that torture must not be permitted.
The three rebel senators successfully blocked legislation intended to grant the CIA virtual carte blanche in using currently banned interrogation techniques, including the right to conceal their activities and to use secret evidence against the accused, which defendants would never have a chance to contest. They were fighting to preserve America's constitutional system of government, which was under direct assault by an unprecedented demand for new presidential powers.
Now, we are facing a new vote, puportedly on legislation which Senators McCain, Graham and Warner have approved, legislation which doesn't allow entirely secret evidence, but does allow CIA agents to provide individual testimony without ever appearing in court or being named, and without having to reveal their sources or methods to the court. Judges would be able to evaluate whether the evidence was "credible" and on that basis allow the meaning of the evidence to be heard in court without the defendant ever having an opportunity to know precisely what evidence was presented or how it was gained.
Human Rights Watch, in calling for rejection of the bill, reports "In denying the fundamental right of habeas corpus to detainees held abroad, defining 'unlawful enemy combatants' in a dangerously broad manner, and limiting protections against detainee mistreatment, the bill would undermine the rule of law and America’s ability to protect its own citizens from unjust treatment at the hands of other governments."
It goes on to warn of the severe danger of the bill's "court-stripping" clause, "which would bar detainees in U.S. custody anywhere around the world from challenging the legality of their detention or their treatment via habeas corpus actions, even if they have been subjected to torture. Innocent people could be locked up forever, without ever having the facts of their case reviewed by an independent court".
That provision alone will cause more than 200 pending cases to be thrown out of court, each of which will examine the legality of the unprecedented detention system being established, including the case that led to the vitally important Supreme Court ruling in June which found the system of secret evidence, trials without the right to defend or to challenge the accuser and indefinite detentions to be unconstitutional.
Fortunately, as reported in the Los Angeles Times, "A bipartisan effort led by Republican Sen. Arlen Specter of Pennsylvania to strip out the provision preventing detainees from filing habeas corpus petitions —demands for legal justification for their imprisonment— is expected to come before the Senate today." That could help bring the bill back in line with US due process law and permit judicial review to prevent future abuses, but it must first be debated, approved for vote in the full Senate and passed, before it is added to the bill.
While the legislation would reportedly ban water-boarding —holding detainees underwater till they believe they are drowning— and possibly also sleep deprivation and infliction of extreme temperatures, though vaguely limited use of "stress positions" might escape the ban, there is concern it would leave many grey areas where abusive techniques would be permitted and where those employing them would be immune from investigation or prosecution.
The bill would specifically provide amnesty from prosecution for all federal agents engaged to date in currently banned interrogation practices and torture. This provision is a tacit admission that the Bush administration can choose to use torture when it sees fit and that the US Congress can in fact retroactively condone illegal acts committed by the Executive branch.
Sen. Carl Levin of Michigan, the Armed Services Committee's ranking Democrat, warned that the new legislation, if made law, would be "used by our terrorist enemies as evidence of U.S. hypocrisy when it comes to proclamations of human rights". Sen. McCain's media office did not return a Sentido phone call inquiring as to his position on whether the compromise could be permitted to alter the US justice system or allow some abuse.
Senators McCain, Graham and Warner, should take a very hard look at their core principles and determine whether any honest and moral human being can sanction prosecutions without due process or interrogations where physical abuse and psychological torment are inflicted to gain information which all experts agree cannot be trusted. They have an opportunity, along with the full Senate, to work together to craft legislation that genuinely serves the principles of democracy and the security of innocents.
They must weigh within themselves the ethical demands that future generations will place on them as guardians of the constitutional system of government and respect for the rule of law in international relations. They must make a conscious choice either to support or to oppose any and all cases of torture, as must every member of the Senate and every American who will vote for anyone with a say in the matter.
Permitting even one case to go without prosecution, even one over-reaching by the White House or the CIA or the Pentagon to stand unchallenged, will signal to future generations a shameful unwillingness to stand by the basic principle that arbitrary violations of law and "outrages upon human dignity" cannot be tolerated. [s]
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