McCain on Torture

Very well-constructed, thought-out, and articulated essay on the wrongs of torture by Sen. McCain in the current Newsweek.

His major points:

Information gained through torture is unreliable. We've all heard this argument before; I've made it myself. And there's plenty of solid support behind it. But when John McCain says it, he has his own direct experience to back up his words:

In my experience, abuse of prisoners often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear -- whether it is true or false -- if he believes it will relieve his suffering. I was once physically coerced to provide my enemies with the names of the members of my flight squadron, information that had little if any value to my enemies as actionable intelligence. But I did not refuse, or repeat my insistence that I was required under the Geneva Conventions to provide my captors only with my name, rank and serial number. Instead, I gave them the names of the Green Bay Packers' offensive line, knowing that providing them false information was sufficient to suspend the abuse. It seems probable to me that the terrorists we interrogate under less than humane standards of treatment are also likely to resort to deceptive answers that are perhaps less provably false than that which I once offered.

When the U.S. uses torture, we put our own soldiers at risk. McCain definitively answers apologists for torture who say that Al Qaeda and other terrorist organizations will never be bound by the good example we set:

Mistreatment of enemy prisoners endangers our own troops who might someday be held captive. While some enemies, and Al Qaeda surely, will never be bound by the principle of reciprocity, we should have concern for those Americans captured by more traditional enemies, if not in this war then in the next. Until about 1970, North Vietnam ignored its obligations not to mistreat the Americans they held prisoner, claiming that we were engaged in an unlawful war against them and thus not entitled to the protections of the Geneva Conventions. But when their abuses became widely known and incited unfavorable international attention, they substantially decreased their mistreatment of us. Again, Al Qaeda will never be influenced by international sensibilities or open to moral suasion. If ever the term "sociopath" applied to anyone, it applies to them. But I doubt they will be the last enemy America will fight, and we should not undermine today our defense of international prohibitions against torture and inhumane treatment of prisoners of war that we will need to rely on in the future.

The "ticking time bomb" scenario might justify cruel and degrading interrogation techniques if such tactics actually ended up producing actionable intelligence that prevented a major terrorist attack and saved American lives. But it's a bad idea to let the rare exception serve as the basis for law.

In such an urgent and rare instance, an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted. But I don't believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America's purposes and practices.

Other countries endangered by terrorism have made torture illegal; if they can reconcile safety with humanity, so can we.

The state of Israel, no stranger to terrorist attacks, has faced this dilemma, and in 1999 the Israeli Supreme Court declared cruel, inhumane and degrading treatment illegal. "A democratic, freedom-loving society," the court wrote, "does not accept that investigators use any means for the purpose of uncovering truth. The rules pertaining to investigators are important to a democratic state. They reflect its character."

It's worth noting, though, that some of these arguments against torture may actually serve as arguments FOR torture, in the twisted reasoning of Bush administration officials.

Case in point: As Matthew Yglesias notes, the fact that torture victims are likely to say whatever the torturer wants them to say may actually be an incentive to torture:

...If you already know what the truth is -- perhaps because it can be deduced from regime-type rather than boring intelligence gathering -- but just need some more evidence in order to convince others, then torture is a really, really, really good way of getting that kind of evidence. That's always been the main historical use of torture -- you have your prisoner, you want a confession, so you torture him until he confesses. It's not, after all, as if the administration was genuinely wondering about Iraq/al-Qaeda ties. They knew what they wanted to prove and they needed to make the case. Torture was an excellent way to get the job done.

Similarly, when McCain says, "It's not who they are; it's who we are," he is saying that we should stay true to our own values and not use cruel interrogation methods even against a cruel enemy. But as David Cole writes in Slate, "who they are" is the central issue for the Bush administration. [Hat tip, Body and Soul.]

That's because the Bush administration's justification for employing "cruel, inhuman, and degrading treatment" against certain individuals expressly turns on the fact that these individuals are foreign nationals held abroad. The coercive-interrogation policy is predicated on a double standard: According to the administration, we can do it to "them" because "they" are different from "us."

On this theory, what would indisputably be illegal if done on U.S. soil, or if done to a U.S. citizen anywhere in the world, becomes lawful when inflicted on foreign nationals held abroad. It is this theory that drove the administration to warehouse hundreds of detainees at Guantanamo Bay, Cuba, under our control but technically beyond our borders. It is this theory that drove the administration to open a network of CIA-controlled secret prisons -- dubbed "black sites" -- in undisclosed locations around the world. ...
[...]
This double standard is deeply flawed. Legal protections for fundamental rights of those we have locked up should not vary depending on the passport they hold. And this flaw raises a serious question not only about administration policy in the war on terror, but also about American constitutional doctrine.

The administration's justification for treating foreign nationals held abroad in the war on terror differently from those held here first surfaced with respect to the prisoners held at Guantanamo. When lawyers challenged the legality of those detentions, the administration responded that the Constitution does not extend to foreign nationals outside our borders, and that therefore the Guantanamo detainees have no constitutional rights. That issue is now being litigated in the courts -- although not for long, if Graham's amendment becomes law.

Then, during Attorney General Alberto Gonzales' confirmation hearings, the administration disclosed that, in its view, not only does the Constitution not apply to foreigners held abroad, but a key part of the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment doesn't either. That treaty, signed by virtually every country in the world, and signed and ratified by the United States in 1994, absolutely prohibits such conduct, without exception, even in a state of war.

After 9/11, however, the Bush administration took the view that the prohibition on "cruel, inhuman, and degrading treatment" simply does not apply to foreign detainees held outside the United States. It pointed to the fact that when Congress ratified the treaty, it stated its understanding that "cruel, inhuman, and degrading treatment" comprised conduct that would violate the United States Constitution -- whose Fifth Amendment prohibits any coercion that "shocks the conscience" in interrogations. Claiming that the U.S. Constitution does not extend to foreigners overseas, the administration reasoned that the treaty prohibition on "cruel, inhuman, and degrading treatment" is similarly limited.

This legal sleight of hand allows the president to insist repeatedly that he does not condone torture and acts only in accordance with the law, while simultaneously dispatching the vice president to Congress to preserve the loophole that allows the infliction of cruel, inhuman, and degrading treatment on foreign suspects abroad. That loophole is the legal underpinning of the CIA's reported practice of "disappearing" foreign suspects into secret "black sites" and then using interrogation tactics against them that would unquestionably be forbidden if employed at the agency's Langley, Va., headquarters. The CIA's approved tactics have reportedly included water-boarding -- in which the suspect is made to think he is drowning to convince him to talk -- mock burials, and threats to send individuals to countries with a known track record for even more brutal forms of torture.

The administration's treaty interpretation makes no sense. The Torture Convention is predicated on the principle that the conduct it prohibits is fundamentally incompatible with human dignity -- and all human beings have equal dignity, regardless of their nationality, and regardless of where they are held. There is no evidence that Congress sought to limit the Torture Convention prohibition to conduct within our borders. Abraham Sofaer, who submitted the treaty to Congress on behalf of the first Bush administration, has written to Congress stating that the current administration's position is inconsistent with the original understanding of the convention and improperly turns an effort by Congress to give substantive definition to the terms "cruel, inhuman, and degrading" into a geographical loophole that frees U.S. officials to commit actions just short of torture when acting abroad.

This is not the first time in American history that government authorities have selectively applied protection of the law on the basis of who and where.

For example, the Supreme Court's failure to treat freed slaves as "citizens" was the basis for its infamous 1857 ruling against Dred Scott. But Congress rejected the rationale of the Dred Scott case in the constitutional amendments adopted after the Civil War, guaranteeing equal protection and due process to all "persons."

When the Constitution was initially adopted, there were also strong distinctions between domestic and international law and jurisdiction -- so much so that there was a question whether even U.S. citizens would be protected by the Constitution overseas. Indeed, in 1891, Supreme Court Justice Stephen J. Field wrote that "the Constitution can have no operation in another country."

But while such territorial distinctions might have made some sense in the 18th century, they make little sense today and have for the most part been abandoned. We routinely extend our laws abroad, prosecuting individuals for conduct overseas if it has any effect on U.S. citizens or property. Since the 1950s, the Supreme Court has held that the Bill of Rights is not limited by our borders and protects U.S. citizens from their own government wherever in the world they may be. Shouldn't the same principle apply to foreign nationals -- at least in cases where U.S. officials have exercised coercive authority over them? The rights not to be locked up arbitrarily or to be protected from treatment that shocks the conscience are human rights, not privileges of citizenship. We should honor these rights wherever we are acting and on whomever we are acting.