Politics & Policy

R., International Community

Lindsey Graham's frivolous defense of the McCain Amendment.

One has to wonder whether Senator Lindsey Graham, in his haste to ban all forms of coercive interrogation–including those that are not torture and that may save American lives–has forgotten what law governs the country he lives in.

In attempting to work out a compromise over Senator John McCain’s amendment, which sets forth such a ban, the Bush administration has proposed a possible carve-out for intelligence officers. Senator Graham, an ardent McCain-amendment supporter, opposes the carve-out. Explaining himself, Graham is quoted as follows in today’s New York Times, from an interview with NBC News: “If we start allowing American political figures to waive the law, grant immunity or create exemptions from existing law that the international community has signed up to, what stops the next country from doing the same thing to our own people?”

This is such an absurd statement it’s hard to know where to begin.

First, it is irrelevant in the United States what “existing law the international community has signed up to.” The only “existing law” that applies in the United States is that which has been enacted in a manner consistent with the United States Constitution. The fictional “international community” signs up to a lot of things which Americans think are batty and thus ignore. Kyoto, the International Criminal Court, and Protocol I to the Geneva Conventions (which aims to extend honorable combatant status to terrorists) are just a few examples. We exempt ourselves, utterly unconcerned that other countries might follow suit. It makes perfect sense that they, like we, would decline to be bound by foolish arrangements.

Second, in this case, the specific “existing law that the international community has signed up to” is the United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment (UNCAT). With respect to UNCAT, as explained here, such “American political figures” as President Reagan and the United States Senate already, over a decade ago, “immun[ized]” and “create[d] exemptions” for our country with respect to provisions addressing “cruel, inhuman and degrading treatment or punishment.” They did so by explicit reservations when the treaty was signed, transmitted, and ratified. Simply stated, the “cruel, inhuman and degrading” provisions do not apply to the United States as written in the treaty. We, instead, hew to our Fifth, Eighth and Fourteenth Amendments. Those amendments, like the rest of the Bill of Rights, are unavailing to aliens captured and held overseas in wartime–regardless of how “the international community” chooses to read UNCAT.

Third, in just about every multilateral treaty the United States has ever ratified, it has done so with express caveats and reservations. Generally speaking, the purpose of these is to uphold our Constitution and the sovereign choices of the American people. International conventions frequently include provisions that cut against our national values and our constitutional rights. It would no doubt be preferable (and certainly less confusing) if we simply refused to sign or ratify such treaties. The practice, however, has often been to sign and ratify but with reservations the precise purpose of which is to do just what Senator Graham suggests we can never do: Waive the offending provisions, immunize ourselves, and create exemptions.

For example, Article 20 of the U.N. International Convention on Civil and Political Rights prohibits, among other things, “propaganda” in favor of war, and “advocacy” of “hatred” that could result in “incitement” to “hostility.” Such restrictions, of course, would violate our First Amendment for various rather obvious reasons. The United States nevertheless ratified this treaty but with a caveat saying it only applied insofar as it was consistent with our Constitution. UNCAT itself, moreover, was ratified with reservations that preserved capital punishment, which the “international community” frowns on.

Is Senator Graham now contending that such reservations are invalid since, after all, they create “exemptions” for Americans which could, theoretically, prompt other countries to exempt themselves? Is he saying that such reservations enacted by the representatives of the American people must give way to the “existing law that the international community has signed up to”? It is doubtful that the usually sensible Senator Graham would take such offensive positions with respect to the First Amendment or the right of Americans to enact death penalty laws. Why should he regard the similar reservations on “cruel, inhuman and degrading” treatment any differently?

Finally, the United States fully abides by the Geneva Conventions. But the Geneva Conventions do not apply to al Qaeda terrorists. Al Qaeda is not a country, and it is obviously not a signatory to Geneva. Even if it were those things, it does not conduct its operations within the laws of war–in fact, it purposefully flouts the laws of war by, among other things, targeting civilian populations for mass murder.

In the context of the current debate over interrogation, what opponents of the McCain amendment are claiming is a right to use interrogation tactics that are not forms of torture against captured terrorists. We are not claiming a right to violate the Geneva Conventions in connection with any honorable combatant to whom the protections actually apply.

It is ridiculous to suggest that we are thus giving other countries an incentive to ignore their Geneva obligations. They have solemnly executed the Geneva Conventions and we have every reason fully to expect them to honor their consequent duties as we honor ours. To be sure, we may be giving other countries an incentive not to consider Geneva prisoner-of-war protections and UNCAT’s “cruel, inhuman and degrading” terms as applicable to captured terrorists. If our position has that effect, it would be an entirely appropriate result. Terrorists who are not entitled to such consideration should not be rewarded with it. That would only encourage more terrorism.

Debate over the McCain amendment began with Senator McCain himself conceding that the law he seeks should be violated whenever necessary. It now continues with his ally, Senator Graham, offering defenses that are legally frivolous and that, as a matter of policy, elevate international sentiment over American sovereign self-determination. Torture is already illegal. Why are American lawmakers lining up in droves behind a reckless and unnecessary law that subordinates American lives to physical comfort of the terrorists trying to kill them?

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

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