Expected Exception to the McCain Rule

A few months ago, liberals were falling all over themselves about John McCain and the putative tough stance he took on his amendment that would supposedly ban torture of detainees held by US forces. But this amendment did not exist in a legislative vacuum, and a few of us warned that the McCain amendment would likely do very little, that the entire torture ban charade was indeed just that, a show put on to demonstrate McCain's ostensible strong moral character. McCain himself knew his showboating would not result in any de facto change of detainee policy and his voting for the Graham-Levin amendment demonstrated his fealty to disasterous White House policy rather than any "moral code."

Well, it now appears that the possibility of McCain's amendment doing "very little" was overstating the case. The Bush administration is now arguing against the ban and doing so with another contemporaneous amendment that McCain himself happily voted into law.

I wonder now if all those apparently clueless lefties who thought the White House had "backed down" on the McCain amendment, or who had thought that McCain's "strong stance" against the Bush administration was just awesome, might be a little bit chagrined by this news:

Bush administration lawyers, fighting a claim of torture by a Guantanamo Bay detainee, yesterday argued that the new law that bans cruel, inhuman or degrading treatment of detainees in U.S. custody does not apply to people held at the military prison.

Now, at first glance, this administration argument appears to directly contradict the text of the McCain amendment, which says,

(a) IN GENERAL. --No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

And,

(a) IN GENERAL.--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.

That is clear language, to be sure. And Gitmo is certainly a "Department of Defense facility." But, how can they argue this? one must surely ask, unless, of course, you know about the Graham-Levin amendment. Because that is exactly what is being now employed in this case.

Continued abuse of Gitmo detainees hinges on the charming and little noticed amendment about which John McCain chose not to stir up any publicity. He hufffed and he puffed and he would ban torture away and he would come away looking very ... presidential.

It was all talk and no walk.

As I've already indicated, it is the Graham-Levin amendment, which denies writs of habeus corpus to detainees -- specifically Gitmo detainees -- that the government is now using in legal arguments in abuse cases. This is no surprise.

In essence, Bush administration lawyers are saying, we may be torturing detainees but they can't challenge that in court, so case closed:

Government lawyers have argued that another portion of that same law, the Detainee Treatment Act of 2005, removes general access to U.S. courts for all Guantanamo Bay captives. Therefore, they said, Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim protection under the anti-torture provisions.

...Justice Department lawyers argued that even if the tactics were considered in violation of McCain's language, detainees at Guantanamo would have no recourse to challenge them in court.

Even Human Rights Watch agrees that the government's argument is correct and is supported by law, law that McCain happily voted for when he was, at the same time, puffing out his chest and getting the White House to "back down."