Senator John McCain’s confusing and vague amendment, calling for a government-wide ban on coercive interrogation, appears to be a done deal. But President Bush should really bear the political heat and veto it. The longer one wrestles with it, the more the McCain amendment forebodes a national-security catastrophe. The legislation should be scrapped altogether, or, at the very least, drastically amended to replace its Bill of Rights references–at once lazy and perilous–with a careful, honest effort to grapple with the propriety of specific interrogation methods.
Absent that, al Qaeda terrorists captured in battle by members of our armed forces–the American soldiers they are trying to kill–would not only be protected from rough interrogation. They may very well have to be given Miranda warnings as well as free lawyers–underwritten by the Americans they are trying to kill.
Cynically tacked on to the 2006 defense appropriations bill (and thus holding hostage provisions for our troops in wartime), McCain’s amendment was approved by a 90-9 Senate vote on October 5, and a margin of 308-122 in the House on Wednesday. The landslides might well have gone the other way if adequate thought had been given to the (presumably unintended) consequences of the measure’s terms.
The more obviously problematic portion is Section 1, which applies only to the military and requires adherence to the Army Field Manual. The manual is currently being revised, which, as the New York Times reported on Wednesday, complicates the tense negotiations over the amendment. As it stands now, however, all coercive questioning by the armed services would be barred.
Basically, under Section 1, al Qaeda terrorists, despite having no rights under the pertinent Geneva Convention, would be rewarded with deferential treatment similar to that given honorable prisoners of war. They would be protected not only from torture (which is already illegal) but also from “cruel treatment” and affronts to “personal dignity” that might be regarded as “humiliating” or “degrading.”
This is unwise, but it pales in comparison to the less apparent disaster that the amendment’s second prong could be. Section 2 would not merely coddle al Qaeda and deprive the United States of life-saving intelligence. It is, potentially, an unfathomable windfall for the terror network.
DOES “CRUEL, INHUMAN, AND DEGRADING” APPLY?
Section 2 is not limited to the military. It purports to prohibit all American government officials, regardless of where in the world they serve (i.e., even if they are, say, covert CIA agents operating overseas), from employing “cruel, inhuman, or degrading treatment or punishment.” I say “purports” because the section’s terms are confusing and internally contradictory.
McCain borrows the term cruel, inhuman, or degrading treatment or punishment (CID) from the 1984 United Nations Convention Against Torture and Cruel, Inhuman, and Degrading Treatment or Punishment (UNCAT). When the Senate ratified UNCAT in 1994, it enacted a significant reservation: the CID terms were limited to what was already covered under U.S. law by three Bill of Rights provisions: the Fifth, Eighth and Fourteenth amendments to the Constitution.
As I’ve argued, here, this caveat reduced CID to a virtual nullity. The Bill of Rights does not apply to non-Americans situated outside U.S. territory. Under current law, UNCAT’s CID terms are thus unavailing to alien enemy combatants captured and held in foreign countries during wartime. Such captives may not be tortured, but CID poses no legal obstacle to aggressive tactics that fall short of torture. Tactics that yield intelligence which saves the lives of American citizens and soldiers.
On first blush, the McCain amendment appears to preserve this UNCAT limitation. The last subparagraph of Section 2 reads as follows:
CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED.–In this section, the term ”cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
This language reiterates and relies on the very UNCAT caveat that made CID irrelevant. If that’s how it were interpreted, the McCain amendment’s second section would not work any real change in American law. It would be a powerful symbolic stand against abusive interrogation, but in reality impotent because CID is circumscribed by three constitutional amendments that have no application overseas. I argued this point–too hopefully, I fear–in this recent article.
On reflection, that hopefulness gives insufficient attention to another brief subparagraph of Section 2, which McCain titles “CONSTRUCTION.” It reads: “Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.” (Emphasis added.)
This is extremely confusing. It suggests that no force is to be given to the geographical limitations of the constitutional amendments relied on by McCain (and in UNCAT) to define “cruel, inhuman, and degrading treatment.” But those limitations are defining aspects of those amendments.
THE AL QAEDA BILL OF RIGHTS
We would not venerate the Bill of Rights, and the Supreme Court would not have given it such vibrant effect, were it not for the fact that it reflects the privileges and immunities of Americans–the attributes of membership in the body politic that created our government.
Remember, constitutional rights are guarantees against our government. They are not rights we would ever have extended to the whole world. The world, after all, contains enemies who would destroy our rights. The very purpose of forming government was to secure those rights from such enemies. It is impossible to separate the substance of the Fifth, Eighth and Fourteenth Amendment protections from the fact that those protections are designed to benefit only people who have joined the fabric of our society. Their content would be very different indeed had they been intended to serve others, especially our enemies.
What’s more, if Senator McCain did not intend the constitutional amendments to apply fully (meaning, with their implicit limitations), what was the point of including them in his bill? It doesn’t make much sense … other than to relieve him of the burden he has avoided at all costs–namely, the burden to specify exactly what types of tactics he believes are “cruel, inhuman, and degrading.” The burden to define forthrightly what he thinks we should and should not be able to do.
Fifth Amendment “due process,” for example, simply means what it literally says: the process that is due. That always depends on the circumstances–which are starkly different between placid domestic policing and the life-and-death of war-fighting, half-a-world away. The purpose of law is to instruct. But writing a law like McCain’s, which essentially says an interrogee is entitled to the process that is due in a war zone, does precious little to instruct an interrogator as to what he is and is not allowed to do.
“YOU HAVE THE RIGHT TO REMAIN SILENT …”
But let’s play it out. Let’s assume the “CONSTRUCTION” subparagraph controls. Could that possibly be what Senator McCain intends? That the substantive protections of these Bill of Rights provisions extend globally to all al Qaeda terrorists?
It would mean, for example, that an al Qaeda terrorist in the custody of our armed forces in Afghanistan would have more rights than a nonviolent illegal alien detained in Texas after being caught trying to sneak across the border. The latter has no due-process rights under American law because he hasn’t succeeded in entering our country.
But things could actually get much stranger, and worse, than that. The Fifth Amendment–made part of the definition of “cruel, inhuman, and degrading” by McCain, contains the privilege against self-incrimination. It used to be that this privilege simply meant freedom from being forced to speak against your will–which at least has the resonance of torture and other forms of obvious coercion.
But it has become so much more than that. In its 2000 decision in Dickerson v. United States, the Supreme Court broke with over 30 years of jurisprudence and held that the rights it first devised in the famous 1966 Miranda case are not just judge-made prophylactic rules designed to protect the separate constitutional right against self-incrimination. The Dickerson Court elevated Miranda to constitutional status. “Miranda rights” are now considered part and parcel of the core Fifth Amendment guarantee itself.
Failing to provide Miranda rights is no longer just a mere “Miranda violation”–the upshot of which was the suppression of a confession not because the Constitution required it but based on a policy choice to promote good police behavior. Failing to provide Miranda rights is now considered a full-fledged violation of the Constitution–of the Fifth Amendment itself. As a matter of law, no Miranda warnings now means a person in custody is constructively considered to have been coerced–no matter how well he has been treated, no matter how much his physical comfort has been respected, and no matter that he may already have known his rights based on prior arrests.
How does all that play into the McCain amendment? As we’ve seen, its Section 2 would forbid the “cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth … Amendment[.]” (Emphasis added.) Now, the lack of Miranda warnings may not strike you as particularly cruel or inhumane (it is unquestionably unusual for a person in custody). But when it comes to such matters, it really doesn’t matter what you, or I, or even Senator McCain think. The Supreme Court, which authoritatively decides what constitutional provisions mean, has already decided that the lack of Miranda warnings renders interrogation unconstitutionally coercive in violation of the Fifth Amendment.
As a result, failing to provide Miranda rights is sure to be found by many federal judges to be a form of lawless coercive interrogation that fits within McCain’s prohibition against cruel, unusual, and inhumane treatment. This is especially so given that judges frequently resort to legislative history in construing vague, confusing, inexact statutory terms. Anyone reading the Congressional Record here will find that the whole purpose behind the McCain amendment was to make coercive interrogation illegal.
If that is the case, then al Qaeda terrorists captured on overseas battlefields in the war on terror would have to be given Miranda rights before they could be interrogated. Forget about water-boarding. They would actually have to be advised that they are under no obligation to speak to interrogators, that if they do speak their statements can be used against them as evidence in court, and that they are entitled to have a lawyer–paid for by the American people–present and assisting them at all times during questioning.
We would also theoretically have to provide such lawyers on request–lawyers who, naturally, would counsel their terrorist clients not to tell our government anything.
TOO FANTASTIC? NO, IT’S ALREADY HAPPENED
“Wait just a minute,” you say. “You’re being an alarmist. Miranda rights for terrorists captured on the battlefield? It’s too fantastic–no one will ever say the law requires that.” Well think again, because it has already happened.
In late 2000–in the flighty days before 9/11 made us think more soberly about our security–a federal judge initially suppressed the confession of Mohamed Al-`Owhali, who had blown up the U.S. embassy in Nairobi, killing over 200 innocent people. Al-`Owhali, a Saudi, had no American constitutional rights. He had been in the custody of Kenya, which does not provide Miranda protections. If the FBI agents who were allowed to question him had advised him of the standard Miranda rights, they’d have been lying to him.
No matter. The judge decided it was as if American agents carried the Fifth Amendment around with them wherever in the world they went. He thus reasoned that the failure to give Miranda warnings, in Kenya, meant the confession–on which the whole case depended–had to be suppressed.
Eventually, the judge reconsidered and permitted the confession to be introduced at the trial (at which al-`Owhali was convicted). The judge was able to do that because he had some legal flexibility. At the time, dubious at best was his premise that the Fifth Amendment actually applied to a Saudi in the custody of Kenya whose only connection to the U.S. was to bomb our embassy.
It will not be a dubious premise anymore if the McCain amendment becomes law. Al Qaeda, which shouldn’t even get Geneva Convention protections, will now be cloaked in the majesty of our Bill of Rights. Who knows how far that will be stretched over time as the federal courts, thanks to the Supreme Court’s shattering 2004 Rasul decision, begin considering hundreds of challenges by enemy combatants to their wartime detention.
The McCain amendment may have started as a well-intentioned effort to minimize torture. As written, however, it has all the makings of a debacle. A debacle that will vest our enemies with the fundamental rights of Americans, while Americans themselves are gravely imperiled.
–Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.