Sen. John McCain (?-Ariz.), joining with liberal Armed Services Committee Chairman Sen. Carl Levin (D-Mich.), issued a report last week on the abuse of terrorist detainees. The report accuses former defense secretary Donald Rumsfeld, former Defense Department General Counsel Jim Haynes, and David Addington, Vice President Cheney’s chief of staff, of causing the torture of terrorist detainees. But the report is a clumsy calumny, contradicting the factual conclusions of earlier, far more credible investigations.
Predictably, it was enough for the New York Times to call for the appointment of a prosecutor to consider criminal charges against Rumsfeld and the others.
During the campaign, both Barack Obama and Joe Biden indicated that they would investigate and prosecute offenses by Bush administration officials. Now Levin and McCain have done their best to rekindle the Abu Ghraib fires, and the Times wants Obama to haul Cheney and Rumsfeld into criminal court.
Levin and McCain could more productively employ their energies undoing the dangerous mess McCain made of the U.S. law on torture in 2005. Concomitantly, the Justice Department should better spend its time investigating and prosecuting the criminal leaks of top-secret information to the Times which have damaged our nation’s security.
The Levin-McCain report is akin to the indictments against the “Trotskyite-Zinovievite Terrorist Center” that were the props for the infamous Stalinist show trials of the 1930s. It ignores the findings of other investigations which were bipartisan and more thorough.
Six Republican senators — Jeff Sessions, John Cornyn, John Thune, Jim Inhofe, Saxby Chambliss, and Mel Martinez — issued a statement condemning the Levin-McCain report. Their statement said, in part, “The latest inquiry into detainee treatment by the Senate Armed Services Committee breaks little new ground…The implication, however, that this abuse [of detainees] was the direct, necessary, or foreseeable result of policy decisions made by senior administration officials is false and without merit. It is counter-productive and potentially dangerous to our men and women in uniform to insinuate that illegal treatment of detainees resulted from official U.S. government policies.”
The Times’s December 18 editorial says the opposite: “Most Americans have long known that the horrors of Abu Ghraib were not the work of a few low-ranking sociopaths.” To the Times, “most Americans” is a term that excludes former Secretaries of Defense James Schlesinger and Harold Brown, Cong. Tillie Fowler and Gen. Charles Horner (USAF, Ret.) whose no-holds-barred 2004 investigation into Abu Ghraib came to precisely the opposite conclusions.
The Levin-McCain report says that the use of “abusive” interrogation methods came about because President Bush wrongly declared terrorists to be illegal combatants, not protected by the Geneva Conventions, and says that Rumsfeld and Cheney acted to authorize the aggressive interrogation methods to capitalize on the president’s supposedly outrageous declaration.
The problem with those conclusions is twofold: first, under the Geneva Conventions, terrorists are illegal combatants and are not protected. They are not “POWs” under international law and are not entitled to the rights a POW has under the Conventions, but the president ordered that they would nevertheless be treated, “…humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”
Second, the Schlesinger Commission report says flatly, “No approved procedures called for or allowed the kinds of abuse that in fact occurred. There is no evidence of a policy of abuse promulgated by senior officials or military authorities.” Why do McCain and Levin disagree with that conclusion? Only because their vendetta against Rumsfeld continues.
But there is worse, much worse, in the report and the Times editorial.
According to the Times, “The [Levin-McCain] report said the interrogation techniques were ineffective, despite the administration’s claims to the contrary.”
But according to the August 2004 Schlesinger Commission report, “At Guantanamo, the interrogators used those additional techniques with only two detainees, gaining important and time-urgent information in the process.” (Emphasis added)
So our interrogators — sparingly using techniques probably including water-boarding — obtained intelligence information that likely saved American lives. For this McCain, Levin and the Times want Rumsfeld in the dock?
And it may come to that because of the messy confusion that now comprises our criminal law against torture. For that, we must thank John McCain.
As I’ve written before, U.S. criminal law was written to implement the UN Convention Against Torture. Between 1996 — when Congress enacted Title 18 U.S. Code Section 2340 to implement the UNCAT — and 2005 American law was quite clear about what was torture and what wasn’t.
Section 2340 defined as torture "…an act committed by a person under color of law specifically intended to inflict severe physical or mental pain or suffering (other than incident to lawful sanctions) upon another person within his custody or physical control."
To avoid being struck down as unconstitutionally vague, the law went on to define terms undefined in UNCAT including "severe mental pain or suffering." U.S. law defines that as, "…the prolonged mental harm caused by or resulting from…: (1) intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or threatened administration of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) threat of imminent death; or (4) a threat to do those things to a third person.”
Between 1996 and 2005, American courts ruled several times on what was torture (e.g., repeatedly forcing people to play “Russian roulette,” causing long-term psychological damage) and what was not (e.g., holding people overnight at gunpoint, which was found to not have caused that kind of long-term damage).
In 2005, all that changed when Sens. John McCain and McCain acolyte Lindsay Graham (R-S.C.) grandstanded on torture, pushing through an amendment to the law which thoroughly confused the law’s definition of it.
The McCain law provides that, in interrogation of terrorist detainees, "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." The problem is that no one in 2005 — or for that matter, now — knows what in blazes “cruel, inhuman or degrading treatment or punishment” means.
By this act of legislative malpractice, McCain put our interrogators at risk. Water-boarding, as proven by the tens of thousands of U.S. pilots who were subjected to it in “SERE” training (survival, evasion, resistance and escape), leaves no lasting psychological damage. For that reason, it wasn’t “torture” under our law before McCain’s amendment, and it probably is now.
I say “probably” because the courts haven’t interpreted what “cruel, inhuman and degrading” means. It may mean water-boarding is torture. It may mean that if I duct-taped you to a chair and shouted “Your momma wears combat boots,” or put a pair of panties on your head, I’d be guilty of torture. Which leaves our interrogators at risk.
Any time someone questions a terrorist detainee, he — or she — is engaged in a psychological battle. Under the McCain Amendment, anyone who uses the detainee’s religious or ethnic prejudices against him may be guilty of torture. But they won’t know until, years later, some ambitious prosecutor decides to indict them.
Congress, according to the latest Rasmussen Reports poll, has again achieved single-digit approval ratings. John McCain has a duty to our military and intelligence operatives to clean up the mess he made in 2005 and return clarity to the law against torture. For him to instead join Levin in falsely accusing Rumsfeld, Cheney and others of ordering and encouraging torture is a violation of that duty.
The New York Times has done more since 9-11 to damage the security of the United States than any other media outlet. Its personal hatred of President Bush has led it to disregard his personal entreaties and publish some of our nation’s most closely-held secrets, including the disclosure of the NSA terrorist surveillance program and the activities of the Belgian “SWIFT” consortium that was helping the Bush administration trace and disrupt terrorist financing.
The Bush administration has failed in its constitutional duty to enforce the law to protect our secrets. According to Newsweek, Thomas Tamm — formerly a Justice Department lawyer — leaked the NSA program to the Times. If the Obama Justice Department chooses to ignore Tamm and the other leakers, it will have violated its constitutional duty.
We often hear that federal prosecutors are too busy and can’t investigate every crime. They should not waste their time investigating Rumsfeld and Cheney after the Schlesinger Commission’s report found that abuses of detainees were not a result of what they did. But leaks such as the one Tamm is alleged to have made — and the leaks of the SWIFT program among others — have caused major damage to our nation’s security. Those leaks must be investigated and punished to the full extent of the law.
If a special prosecutor is to be named, let him be appointed specifically to investigate and charge the leakers, not with bringing about a political show trial.