We Need "Maximum Flexibility" to Waterboard

The New York Times reports that the Administration has pressed to exempt the CIA from the proposed McCain Amendment's ban on abusive treatment of detainees.

The Senate defied a presidential veto threat nearly three weeks ago and approved, 90 to 9, an amendment to a $440 billion military spending bill that would ban the use of "cruel, inhuman or degrading treatment" of any detainee held by the United States government. This could bar some techniques that the C.I.A. has used in some interrogations overseas.

But in a 45-minute meeting last Thursday, Vice President Dick Cheney and the C.I.A. director, Porter J. Goss, urged Senator John McCain, the Arizona Republican who wrote the amendment, to support an exemption for the agency, arguing that the president needed maximum flexibility in dealing with the global war on terrorism, said two government officials who were briefed on the meeting. They spoke on condition of anonymity because of the confidential nature of the discussions.

Mr. McCain rejected the proposed exemption, which stated that the measure "shall not apply with respect to clandestine counterterrorism operations conducted abroad, with respect to terrorists who are not citizens of the United States, that are carried out by an element of the United States government other than the Department of Defense and are consistent with the Constitution and laws of the United States and treaties to which the United States is a party, if the president determines that such operations are vital to the protection of the United States or its citizens from terrorist attack."

As Marty Lederman has pointed out here, the purpose of the amendment is not to give the President "maximum flexibility" for the future, but rather to exempt the CIA so that it can continue to do what it has been doing for some time.

The language of the proposed exemption seems to require adherence to existing human rights treaties like the Convention Against Torture, but the Bush Administration has taken the (unreasonable) position that the ban on cruel, inhuman, and degrading treatment of prisoners in the CAT does not apply to overseas interrogations, which gives the CIA the green light to engage in cruel, inhuman and degrading treatment that stops just short of torture as the Administration (narrowly) defines that term.

One interesting result of the negotiations over the McCain Amendment is that they place the Administration in the position of having to accept (at least provisionally) that at least some forms of Congressional restraint on the executive's powers to interrogate are constitutional.

Obviously, the Administration may turn around and say that all such limits are unconstitutional, but it will politically become more difficult to do so after this.