An article by The New York Times's Mark Mazzetti this morning discloses a letter (.pdf) from the Justice Department to Congress which asserts "that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law." In other words, even after all of the dramatic anti-torture laws and other decrees, the Bush administration insists that American interrogators have the right to use methods that are widely considered violations of the Geneva Conventions if we decide that doing so might help "thwart terrorist attacks."
There are two reasons, and two reasons only, that the Bush administration is able to claim this power: John McCain and the Military Commissions Act. In September, 2006, McCain made a melodramatic display -- with great media fanfare -- of insisting that the MCA require compliance with the Geneva Conventions for all detainees. But while the MCA purports to require that, it also vested sole and unchallenged discretion in the President to determine what does and does not constitute a violation of the Conventions. After parading around as the righteous opponent of torture, McCain nonetheless endorsed and voted for the MCA, almost single-handedly ensuring its passage. That law pretends to compel compliance with the Conventions, while simultaneously vesting the President with the power to violate them -- precisely the power that the President is invoking here to proclaim that we have the right to use these methods. As Columbia Law Professor Michael Dorf wrote at the time:
Americans following the news coverage of the debate about how to treat captives in the ongoing military conflicts could be forgiven for believing that the bill recently passed by Congress, the Military Commissions Act ("MCA"), was a compromise between a White House seeking far-reaching powers, and Senators seeking to restrain the Executive. After all, prior to reaching an agreement with the President, four prominent Republican Senators -- Susan Collins, Lindsey Graham, John McCain, and John Warner -- had drawn a line in the sand, refusing to go along with a measure that would have redefined the Geneva Conventions' references to "outrages upon personal dignity" and "humiliating and degrading treatment." No doubt many Americans believe that because these four courageous Senators stood on moral principle, the bill that emerged, and which President Bush will certainly sign, reflects a careful balance between liberty and security.
Yet if that is what Americans believe, they are sorely mistaken. On nearly every issue, the MCA gives the White House everything it sought. It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.
Destroying the protections of the Geneva Conventions while pretending to preserve them was accomplished by Section 6(a)(3) of the MCA (.pdf), which provides:
INTERPRETATION BY THE PRESIDENT - (A) As provided by the Constitution and this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions . . . .
Paragraph (C) provides that such decisions "shall be authoritative" under U.S. law. McCain supported the MCA knowing that the President retained virtually unfettered discretion to decree that the interrogation methods we were using that are widely considered in the civilized world to be torture could continue. That's John McCain -- and his Principled Maverickism and alleged torture opposition -- in a nutshell. He continuously preens as some sort of independent moralizer only to use that status to endorse and enable that which he claims to oppose. In Great American Hypocrites, I wrote about his numerous deceitful maneuvers to legalize torture as follows:
The mirage-like nature of McCain's alleged convictions can be seen most clearly, and most depressingly, with his public posturing over the issue of torture. Time and again, McCain has made a dramatic showing of standing firm against the use of torture by the United States only to reveal that his so-called principles are confined to the realm of rhetoric and theater, but never action that follows through on that rhetoric.
In 2005, McCain led the effort in the Senate to pass the Detainee Treatment Act (DTA), which made the use of torture illegal. While claiming that he had succeeded in passing a categorical ban on torture, however, McCain meekly accepted two White House maneuvers that diluted his legislation to the point of meaningless: (1) the torture ban expressly applied only to the U.S. military, but not to the intelligence community, which was exempt, thus ensuring that the C.I.A.—the principal torture agent for the United States—could continue to torture legally; and (2) after signing the DTA into law, which passed the Senate by a vote of 90–9, President Bush issued one of his first controversial "signing statements" in which he, in essence, declared that, as President, he had the power to disregard even the limited prohibitions on torture imposed by McCain's law.
McCain never once objected to Bush's open, explicit defiance of his cherished anti-torture legislation, preferring to bask in the media’s glory while choosing to ignore the fact that his legislative accomplishment would amount to nothing. Put another way, McCain opted for the political rewards of grandstanding on the issue while knowing that he had accomplished little, if anything, in the way of actually promoting his "principles."
A virtual repeat of that sleight-of-hand occurred in 2006, when McCain first pretended to lead opposition to the Military Commissions Act (MCA), only thereafter to endorse this most radical, torture-enabling legislation, almost single-handedly ensuring its passage. After insisting that compelled adherence to the anti-torture ban of the Geneva Conventions was a nonnegotiable item for him, McCain ultimately blessed the MCA despite the fact that it left it to the President to determine, in his sole discretion, which interrogation methods did or did not comply with the Conventions' provisions.
Thus, once again, McCain created a self-image as a principled torture opponent with one hand, and with the other, ensured a legal framework that would not merely fail to ban, but would actively enable, the President’s ability to continue using interrogation methods widely considered to be torture. Indeed, by casting himself as the Supreme Arbiter of torture morality, McCain's support for this torture-enabling law became Bush and Cheney's most potent instrument for legalizing the very interrogation methods that McCain, for so long, flamboyantly claimed to oppose.
And then this year, McCain voted to oppose a ban on waterboarding, claiming that it was unnecessary given that waterboarding is already considered illegal by the Bush administration -- an assertion about which he later admitted he had no real knowledge and which is, in any event, simply untrue.
As the NYT story illustrates this morning, we continue to be a rogue nation when it comes to international norms on the treatment of detainees. The DOJ explicitly claims the right to use methods otherwise prohibited under the Conventions as long as it claims doing so is necessary to stop the Terrorists. And despite his media-sustained reputation as a righteous, principled opponent of torture, much of these disgraces are the direct by-product of John McCain's work.