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Torturing the Law

By Jed Babbin

That Sen. John McCain is willing to stake his presidential ambitions on the battle to legislate the interrogation of terrorist prisoners is a testament to his courage. And it should cost him the White House. McCain's courage was never an issue. Anyone who reads of his bravery under torture in the infamous North Vietnamese "Hanoi Hilton" cannot doubt it. McCain's personal experience makes his legislative posturing on the law of terrorist interrogation all the more puzzling.

In 1996, two years after making Senate ratification of the UN Convention Against Torture (UNCAT) conditional on implementing legislation, Congress enacted Title 18 US Code Section 2340 which made torture committed outside the US by a US soldier or civilian government employee, a federal felony. The US statute defined torture in clear terms. It said that torture was, " 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." US law defines it 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.

US courts, deciding a variety of cases, further defined what was torture and what wasn't. Mostly, they decided claims based on whether the person allegedly tortured suffered prolonged mental or psychological harm. (In one case, people who were held at gunpoint overnight didn't suffer torture because they lacked long-term harm. In another, people who had been forced to play "Russian roulette" repeatedly had suffered long-term psychological damage and were found to have been tortured.) As the courts ruled on more and more cases, the law was further clarified. Enter John McCain with his clarity-destroying legislation.

Last year, Sen. McCain and his acolyte Sen. Lindsay Graham, authored and then grandstanded through an amendment to the Defense Appropriations bill that the media advertised as a new, bold step to outlaw torture. It wasn't that, but it did two things. First, it limited of interrogation methods to those authorized in the Army Field Manual on intelligence interrogation. Second, it befogged the law on torture by adding that, "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." Instead of defining those broad terms, the McCain Amendment punted. It said they should be defined in accordance with the US Constitution, and the US reservations in ratifying UNCAT. The Defense Department and the intelligence community opposed McCain strenuously, arguing unsuccessfully for clarity in the law. The McCain amendment was enacted and undid almost ten years of precedent under Section 2340.

The administration's actions to implement the June Supreme Court decision in Hamdan v. Rumsfeld only added to the problem McCain's amendment created. The Geneva Conventions' Common Article 3 held applicable to the military commissions in Hamdan prohibits, among other things, "...outrages upon personal dignity, in particular humiliating and degrading treatment." Those terms, like the language in McCain's amendment, are undefined. The president has stated that Common Article 3 is being applied not only to the military commissions, as Hamdan requires, but to every aspect of treatment of terrorist detainees. I have asked, repeatedly, why the administration is extending Hamdan beyond its terms, and the only answer I've gotten is that it's too hard to parse it out. The president should get some more capable lawyers. Nevertheless, at this point, no one in the intelligence and defense communities knows what is or is not allowed in terrorist interrogation.

To correct this, the president's legislative proposal seeks to undo most of the damage created by McCain and the Supreme Court. It would not make torture lawful. Instead, it clarifies the rules under which terrorist detainees can be interrogated by providing a specific list of prohibited practices that would be regarded as war crimes and states that by the previously-enacted Detainee Treatment Act, America has performed its duty under Common Article 3. Now, McCain's opposing bill - which thwarts the whole clarification movement and insistently leaves the critical terms undefined - has passed the Senate Armed Services Committee.

Majority Leader Bill Frist said Tuesday that the McCain bill will not pass the Senate, and that he may lead a filibuster against it. Four liberal House Republicans - Christopher Shays (Ct), Michael Castle (Del), Jim Leach (Iowa) and James Walsh (NY) - have thrown their support behind the McCain bill and announced opposition to the president's bill.

McCain's tenacious grip on vagueness is counter-intuitive. Given his personal experience with torture, we should expect him to be insisting on clarity. And given his - and Lindsay Graham's - military experience we should expect them to be taking every step to protect the soldiers and civilians who interrogate terrorists by providing them with clear rules of conduct. They demand, instead, to leave our interrogators subject to second-guessing by every ambitious prosecutor who may want to make a name for himself in a flashy show trial about cruel and degrading treatment. Whatever some jury may decide it is in the safety of a courtroom years after the event.

The White House is now apparently bargaining away its position, and the legislation may not pass any time soon. The longer Congress leaves the law unclear the longer our people will be at risk in interrogating prisoners. They, the interrogators, shouldn't have to risk their futures on a slap to Khalid Sheik Muhammed's cheek. Our Constitution demands clarity in our criminal laws. Regardless of what McCain, Graham and the rest say, we owe it to our people, and we owe it to them now.

Sending these brave men and women into a holding cell to interrogate an al-Queda tough without clear rules of law is tantamount to sending a Marine out in the streets of Ramadi without body armor. Any military officer who did that would - and should - be fired. So should members of Congress who send our interrogators into those cells without cleaning up the McCain mess.

Jed Babbin was a deputy undersecretary of defense in the George H.W. Bush administration. He is a contributing editor to The American Spectator and author of Showdown: Why China Wants War with the United States (with Edward Timperlake, Regnery 2006) and Inside the Asylum: Why the UN and Old Europe are Worse than You Think (Regnery 2004).

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