The McCain Amendment and Other Stories

By Phillip Watts in Revolution Online

The McCain/Graham-Levin Amendment Legalizes Torture

In December the infamous McCain “anti-torture” amendment was signed in to law as part of a Defense Appropriations bill. But in reality “anti-torture” amendment and the negotiations behind it – ends up legalizing torture ‘ including setting new legal precedent. It not only makes it more possible for the US to utilize torture ‘ it insures prisoners at Guant’namo have no habeas rights ‘ the right to come before a court to determine the lawfulness of their imprisonment.

In the media John McCain was painted as standing up to Bush and bringing “reason” to the issue of torture. While McCain has voiced differences with the Bush Administration on torture, when the amendment was finally signed into law what was brought to light was the unity McCain ultimately has with the Bush torture program. As previously pointed out in Revolution, “McCain and Bush announced that they made a deal that gave both of them what they wanted: torture without worry about prosecution, and with deniability.”

How has this “anti-torture” legislation legalized torture?

First “the administration has failed to lay out clear – and acceptable – standards of what constitutes torture and CID (cruel inhumane and degrading treatment). ?Administration officials continue to refuse to state that water-boarding constitutes torture,” Human Right Watch (HRW) told Revolution. Water-boarding is a torture technique which simulates an execution by drowning, and often ends up doing just that. The victim is held down with cellophane wrapped on their face, while water is poured over the mouth triggering an unavoidably and often painful gag reflex. There are other methods such as sensory deprivation, psychological torture, freezing, sleep deprivation and more, designed to drive people insane if not kill them outright.

Just after Bush announced his deal with McCain, Attorney General Alberto Gonzales made it crystal clear that the administration would define torture any way it liked. “He said on CNN that torture meant the intentional infliction of severe physical or mental harm, and repeated the word ‘severe’ twice,” cites CIA analyst Ray McGovern.

Second, again according to HRW, “The legislation containing the McCain Amendment?includes another provision – the Graham-Levin Amendment – that would deny the five hundred-some detainees in Guant?namo Bay the ability to bring legal action seeking relief from the use of torture or cruel and inhumane treatment. And it implicitly authorizes the Department of Defense to consider evidence obtained through torture or other inhumane treatment in assessing the status of detainees held in Guant?namo Bay.” HRW also points out that “?this would be the first time in American history that Congress has effectively permitted the use of evidence obtained through torture.”

Third, before the bill was signed two other provisions were added, one which basically gives military personnel accused of torture the right to say they were “just following orders” and the other which extended this defense to the CIA. According to Legal Professor and former Justice Department Lawyer, Marty Lederman,”The idea?was to make sure that CIA interrogators would not be civilly liable, or criminally culpable, if they reasonably relied on the Attorney General’s [Alberto Gonzales] certification that a particular technique is lawful.”

There are other “loopholes” for example the fact that according to amendment guidelines, interrogations are to come from the Army Field Manual. Yet the New York Times reported on December that the Army Field Manual has been reissued for the first time in 13 years, with ten pages of classified provisions on interrogation techniques.

Looking more deeply at all this, it becomes clear that the “anti-torture” legislation was really a sophisticated way of legitimating and legalizing torture in essence – while appearing to do just the opposite. Those who held out hope for McCain should take a deep lesson – that when you rely on these people to solve problems, the problems only intensify and multiply.

Signing Statement

After agreeing to the McCain-Graham-Levin Amendment, which in effect legalized torture, Bush issued a signing statement – a statement declaring how he “interprets the law.” Bush wrote that:

“The executive branch shall construe Title X in Division A of the Act [supposed ban on torture], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power,”

TRANSLATION: I have the constitutional RIGHT as COMMANDER-IN-CHIEF to order all the torture I want – DON’T GET IN MY WAY!

Bush has declared – and acted on – an unprecedentedly expansive definition of ‘the constitutional authority of the President’. These definitions of executive power have been argued in numerous memos written post 9/11 by a small handful of administration lawyers, including John Yoo (who has public argued the Presidents constitutional right to torture suspects children). And now the wiretap scandal has exposed that Bush has ordered the NSA to spy on millions of Americans – and arrogated to himself the right to break the law! His use of the signing statement in relation to the torture law is more of the same, taken to outrageous lengths.

According, a legal news site, “in striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone – which is almost equal to the total number of such signing statements by ALL his predecessors. And, in these statements and in his executive orders, Bush used the term ‘unitary executive’ 95 times.”

(Supreme Court nominee Sam Alito was one of the inventors of the modern use of the “signing statement” mechanism as a means to increase the president’s power. Working under Reagan Administration attorney general, Edwin Meese, in 1986 Alito wrote that, “our primary objective is to ensure that presidential signing statements assume their rightful place in the interpretation of legislation. . . This would ‘increase the power of the executive to shape the law.'”)

How officially recognized the legal theory behind unitary executive and signing statements is has become a moving target. But the logic is that the President as Commander in Chief, can define the law for people he has authority over, including the CIA and the armed forces and consistent with the ‘constitutional limitation on judicial power’ – the courts can’t say shit to him. All while Bush, and his administration, continue to bomb, torture and wiretap the people of the world – daring anyone to get in his way.