Tortured Debate

"There is mercy which is weakness, and even treason against the common good."
George Eliot

Once again, Senator McCain (R-Media) and the Senate are pushing a bill that looks good to the media but doesn't accomplish a blasted thing.

Andrew McCarthy today, writing in National Review Online:

Terrorists do not just flout the laws of war. They turn them into an offensive weapon. When they are not killing civilians, they are hiding among them. When they are not blowing up civilian infrastructure whether hotels, office buildings, or houses of worship they are using them as weapons depots, meeting halls, and war rooms.

...We don't know who they are or from which way they come. This is not a traditional foe. We can't conquer his territory. He doesn't have one. He's a nomad who trains in secret then sets up shop among innocents only long enough to kill. We can only desperately seek him out. We can only hope to kill or capture him before he uses the honor of true soldiers against them before he converts to his advantage their moment's hesitation, borne of dedication to a code that war is to be fought between warriors, not by opening fire on non-combatants.

Superior force and discipline are not enough against this adversary. We need intelligence. Intelligence is the single asset that stands between the terrorist and scores if not more of slaughtered civilians. Between the terrorist and murdered American military personnel. In the war on terror, as in no war before it, intelligence will be the difference between victory and defeat.

And if Senator John McCain has his way, the most urgently needed intelligence will be lost.

But here is the kicker:

The grandstanding elements are plain enough. First, the whole exercise is a melodramatic condemnation of torture capitalizing on the Abu Ghraib scandal and isolated instances of prisoner abuse which, while deplorable, are not only infrequent by historical standards but compare favorably to the civilian detention system.

None of it is necessary. Torture is already against the law. It is, moreover, the intentional infliction of severe physical or mental pain which is to say, much of the prisoner abuse that has prompted the current controversy has not been torture at all. Unpleasant? Yes. Sometimes sadistic and inexplicable? Undoubtedly. But not torture. And where it has been either torture or unjustifiable cruelty, it is being investigated, prosecuted, and severely punished.

Second, the McCain Amendment affects a high-minded prohibition against "cruel, inhuman and degrading treatment." This, too, is a meaningless gesture — except to the extent it will be perceived by McCain's breathless following in the mainstream media as a political slapdown of the president, the secretary of Defense, and the military brass.

That's because the provision does not change existing law a wit. In 1994, the United States ratified the 1984 United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment (UNCAT).

But wait a minute, you say. Haven't commentators (like yours truly) noted that the Senate approved the treaty with a heavy caveat? Indeed it did. The Senate provided that the treaty was limited by the Fifth, Eighth and Fourteenth Amendments to the Constitution. Although those amendments call for due process and bar both coerced confessions and cruel and unusual punishments, they have largely been limited to judicial proceedings involving criminal defendants. Thus, they are essentially irrelevant to wartime detentions of alien enemy combatants.

So does the McCain Amendment change that? No. It contains exactly the same reservation. In fact, it expressly reiterates the UNCAT caveat and explicitly cites to it, lest there be any confusion. On this, again, it is all show and no substance.

So what's different? That question brings us to the suicide part. McCain wants to turn every enemy combatant into an honorable prisoner of war — at least to the extent that such prisoners are protected under the Geneva Conventions against any type of coercive interrogation.

Read the whole thing.

"All show and no substance." From the Senate. Gee, there's a surprise.

Here's the deal. I don't want to tie our hands. We did that in the 1970s, as a result of Senator Frank Church and his commission. He may have been great for the environment (I'm not convinced) but he was terribly destructive to our national security. Our intelligence establishment has still not recovered, over twenty years and one disastrous bolt from the blue later.

Now we want to do it again. No. Not this time.

First, we need to have faith in our people, that they will only use extreme force when they deem it absolutely necessary. And I want them to have the leeway to do so. I would choose to torture one man to save a city. And I don't like the idea of torture - it harkens back to the Inquisition.

Second, what's torture? I think it's putting some guy on the rack and seeing how much longer his arms can get. But the ACLU thinks putting a guy in a cold room or messing with his sleep patterns is torture. I disagree with the ACLU, and will continue to do so until they get their Iranian chapter up and running. I just can't make the leap in logic comparing turning the thermostat down to chopping people's heads off that the ACLU can.

Third, I want the bad guys to know it's no-holds-barred. Our enemies know no bounds. Prisoners are tortured and executed. They deliberately target civilians, as last week's bombings in Jordan should have proved to everyone's satisfaction. Indeed, they make no distinction between civilians and soldiers. Everyone is an equally valid target - "Kill 'em all and let God sort 'em out" in gory application.

So why do such sub-human animals merit the full protections of civilized society? They shun our conventions and seek to overturn our ways of life. Tolerance, equality, and liberty are not in their lingo. And they are not citizens of our countries, either - they are foreigners, seeking to do us harm.

We very well may have been too merciful already. The wars against piracy are to my mind a good example civilized civlized society could handle murderous outlaws. When suspected pirates were captured, they received a military tribunal. The innocent were held until they could be dropped off at the next port. The guilty were immediately hung from the yardarm - no appeal. Harsh justice - but so were their crimes.

Al-Qaeda and their affiliated groups have made the civilized world their enemy, and they will not go away. They were targeting us before Iraq, and they will continue to target us regardless of what we do there.

Let's fight to win.