Fido the Yak

The McCain Amendment prohibiting the mistreatment of detainees was agreed to in the Senate by a margin of 90 to 9. (Senator Corzine who was not present surely would have voted aye). Reportedly President Bush has pledged to veto the measure. That would be truly despicable. The editors of the Washington Post put their fingers on what a veto would signify: "Let's be clear: Mr. Bush is proposing to use the first veto of his presidency on a defense bill needed to fund military operations in Iraq and Afghanistan so that he can preserve the prerogative to subject detainees to cruel, inhuman and degrading treatment. In effect, he threatens to declare to the world his administration's moral bankruptcy."

When I followed the debate between Jeremy Waldron and John Yoo, it struck me that the strongest argument in favor of Waldron's position, to which Yoo had no satisfactory answer, concerned the cultural context in which torture is either prohibited or allowed to occur. The McCain amendment addresses this very point. Those who wish to take up Yoo's kind of thinking in earnest would be well served by the McCain amendment, as it removes ambiguity about the standard of treatment that applies to detainees. Political opposition to this legislation will call into question the motives of those who would question the scope, intention, or applicability of international humanitarian law in response to the threat posed by the rise of global terrorist networks.

Senator McCain argued that his amendment was pretty simple and straighforward. Can the same be said of the explanations of the nine Senators who voted against it? The text of the amendment, as agreed to, is as follows:

(Purpose: Relating to persons under the detention, custody, or control of the United States Government)

At the appropriate place, insert the following:

SEC. __. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

(a) In General.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

(b) Applicability.--Subsection (a) shall not apply to with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

(c) Construction.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

SEC. __. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.

(a) In General.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

(c)Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

posted by Fido the Yak at 10:24 AM.