Balkinization: Senator McCain's Understanding of His Own "Compromise" Legislation

Senator McCain's Understanding of His Own "Compromise" Legislation

Marty Lederman

From today's Face the Nation. A decidedly mixed bag. I've included some marginal notations, but not, for the most part, with respect to McCain's central assertions and characterizations -- which, at least for the time being, will have to speak for themselves:

Mr. [John] HARRIS [Washington Post National Political Editor]:

Senator, can we go to your agreement with the administration this week . . .

Sen. McCAIN: Sure. Sure.

Mr. HARRIS: ...on the law regarding torture?

Sen. McCAIN: Sure. Sure.

Mr. HARRIS: This whole debate turned on things that I think most citizens couldn't understand. You said you--severe punishment, pain should not be inflicted, but serious pain can--what can that possibly mean in concrete terms?

Sen. McCAIN: In concrete terms, it could mean that waterboarding and other extreme measures such as extreme deprivation--sleep deprivation, hypothermia and others would be not allowed.

Mr. HARRIS: That's what you say. What if the administration interprets it differently, as it is allowed to do under the provisions of this law? What if you disagree with the interpretation?

Sen. McCAIN: If we disagree with the interpretation, the fact is that those interpretations have to be published in the Federal Register. [MSL Note: As I read the bill, nothing would require the President to do so, especially if he thinks that the bill itself has already provided a definition, e.g., with respect to "cruel treatment."] That's a document that's available to all Americans, including the press. And we in Congress, and the judiciary, if challenged, have the ability then to examine that interpretation and act legislatively. These are regulations the president would issue, we would be passing laws which trump regulations. [MSL Note: Congress would have to muster veto-proof majorities in both houses.]

Mr. HARRIS: If you have confidence that those were--tactics were disallowed, why didn't you get it in the--in the actual law?

Sen. McCAIN: What we did, John, was we called--outlawed certain procedures, including some of those that you might think would be natural--murder, rape, etc.--but also cruel and inhuman--we included cruel and inhuman treatments, not as severe as torture but could still be considered a crime.

[Bob] SCHIEFFER: Well, we look at...

Sen. McCAIN: I'm confident that some of the abuses that were reportedly committed in the past will be prohibited in the future.

SCHIEFFER: Well, for example, will this prohibit making people stand up for long periods of time? Because I know in your captivity--what?--you were once made to stand up for two days, or something?

Sen. McCAIN: Yeah. It's hard for me to get into these techniques. First of all, I'm not privy to them, but I only know what I've seen in public reporting. But some of these, such as an extreme stress position and extreme application of that I think would be--would be certainly important. But we also put in that if they're employed to the extent they cause serious physical or mental pain and suffering, but even if that is not prolonged. In other words you could do something almost instantaneously and that would still be prohibited under the, quote...

SCHIEFFER: What does "prolonged" mean?

Sen. McCAIN: Well, like the sleep thing you just mentioned, like standing, like--exposed to cold temperature to the danger that serious injury could, mental or serious--or physical injury could result. Look, we couldn't outline everything that should be done. We tried to outline what couldn't be done under the War Crimes Act, leaving the Geneva Conventions alone, which was our first and utmost priority. [MSL Note: This is the suggestion that "cruel treatment" under the War Crimes Act would not encompass all "cruel treatment" prohibited by Article 3(1)(a) of the Geneva Conventions.]

Look, [the] ACLU and the New York Times don't like the agreement, but we think this will recognize, people will recognize that it defends both our values and our security. Some want the CIA not to be able to carry out this program. That was never our intent. And--but it was--it's very important that we have this tool to collect intelligence.

Mr. HARRIS: What gives you the confidence? The last time you reached an agreement, it was in law, the administration signed it, and then put out a signing statement saying it was going to interpret it its own way. Did you have confidence as you were negotiating with the administration, and are you also confident that this outlaws torture?

Sen. McCAIN: That Detainee Treatment Act, they did have--put that signing statement in, but it's--they have never violated it to my knowledge, and we would challenge it if they did. [MSL Note: Huh?] And second of all, part of this agreement is adherence to the act that we passed, the Detainee Treatment Act. So, look, I believe the administration acted in good faith. We all understand the need to collect intelligence and we know how important it is. But we also ought to recognize that...

Mr. HARRIS: Do the tactics work?

Sen. McCAIN: Well, that's--I was just going to say. Thanks, John.

Mr. HARRIS: Because the administration said these tactics work. Do they?

Sen. McCAIN: I think that they work to an extent, but I also think that we have to be very careful, because we already have numerous examples where, if you torture somebody, they'll tell you anything that you want to know. Ask the British in Northern Ireland. Ask the French in Algeria. Ask the Israelis. So you've got to be very careful about the--about these abuses.

Mr. HARRIS: Well, you have access to more information about this than any of us because you've been in the negotiations.

Sen. McCAIN: No, actually I...

Mr. HARRIS: What works?

Sen. McCAIN: No. What do you mean? They're going to...

Mr. HARRIS: You know of specific instances where these tactics have produced valuable information. And...

Sen. McCAIN: Only what the president talked about in his speech, and there has been, everyone agrees, there has been some valuable information gained. Exactly what techniques were used in obtaining that, I certainly don't know. [MSL Note: So even McCain doesn't know what he was negotiating about . . . .]

SCHIEFFER: Senator McCain...

Sen. McCAIN: But it's clear we have to have the moral high ground and we cannot violate the Geneva Conventions, which we've adhered to for 57 years. And we will not.

SCHIEFFER: Well, that just leads to my question. Should the administration and the CIA close these secret prisons?

Sen. McCAIN: I--that's not for me to say. But I--but I do believe that we have to be careful about our image in the world. But we also have to balance that with the ability to win this war on terror. And gathering of intelligence is a very important tool. The administration makes a very strong case, and I don't question it, that the interrogation of a couple of these high-value--and remember, these are the worst people in the world and we all know that--that has--gave them valuable information in thwarting attacks on the United States of America. [MSL Note: The draft legislation is in no way limited to interrogation of "high-level" detainees, or any other category, for that matter.]

I take them at their word. But we also have to remember that if we have our men, young people, captured, say a CIA agent in Iran, and we--if the Iranians decide to interpret the Geneva Conventions, then obviously that would put our young peoples' lives in danger. That's why we didn't touch the Geneva Conventions.

Posted 3:12 PM by Marty Lederman [link]