The Corner

Re: Re: Drew Cline on McCain

Drew, you should perhaps read what Sen. McCain himself has written (in a 2005 Newsweek essay, reproduced here) on the ticking bomb scenario (italics are mine): 

Those who argue the necessity of some abuses raise an important dilemma as their most compelling rationale: the ticking-time-bomb scenario. What do we do if we capture a terrorist who we have sound reasons to believe possesses specific knowledge of an imminent terrorist attack? …  In such an urgent and rare instance, an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted. But I don’t believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America’s purposes and practices.

As McCain makes quite clear, he does not, as you claim, “approve harsher interrogation techniques in a ticking time bomb scenario.”  Instead, he says that IF an interrogator takes it on himself to use them, and IF the interrogator is fortunate enough to wangle the information that saves thousands of lives, the interrogator would PROBABLY not be prosecuted … or at least convicted.  But, under the McCain Amendment (as well as federal anti-torture statutes), that interrogator would still be in violation of the law because McCain believes there should be no legal exemption for taking such actions to protect the nation in dire circumstances.  That is not an unjustifiable position on his part — it is, indeed, a position shared by many serious people (including Judge Richard Posner).  But you shouldn’t say he’s approved something he does not approve.  His unwavering principle is to protect the physical comfort of the terrorist; the safety of Americans is left as a crapshoot.

Your point about rights “created by the Constitution” is well taken — very poor phrasing on my part.  I was speaking about rights explicitly protected by the Constitution.  They are not created by the Constitution and there are (as you remind us, quoting the Constitution itself) other rights beyond those specified in the Constitution.

Nevertheless, your rhetorical questions make an inapt assumption.  Referring to unalienable rights, you ask, “Do the people have no others?” (my italics).  The problem is that the people James Madison was talking about in the Bill of Rights are the American people.  Illegal aliens are not the people; nor are unlawful alien combatants whose only connection to our body politic is to make war on it.  Such people no doubt have some natural rights – as you observe, the Declaration of Independence says as much.  But the rights to be deemed part of the people for immigration purposes or to claim protection against our government during wartime for interrogation purposes are plainly not among them.  The instinct that aliens are vested with such rights is not conservative; it is revolutionary.  Cf. Justice Jackson’s opinion for the court in Johnson v. Eisentrager (1950):  “Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view.…  None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it.”

Finally, I did not contend that McCain said it would be a good idea to give captured enemy combatants Miranda warnings.  My point is that McCain is such a heedless ideologue on coercive interrogation he may well have stumbled — however inadvertently — into that which you rightly regard as “ridiculous.”  McCain has succeeded in writing into our law that alien enemy combatants have Fifth Amendment protection against cruel, inhuman and degrading treatment.  According to him, coercive interrogation constitutes such treatment.  According to the Supreme Court (a) interrogation that occurs without Miranda warnings is inherently coercive, and (b) Miranda warnings are now part of the core Fifth Amendment guarantee — such that anyone who has Fifth Amendment rights against compulsory self-incrimination now has Miranda rights.

If you and the Senator don’t see from that how easily today’s judiciary could get from the McCain Amendment to battlefield Miranda, you have not been watching today’s judiciary very closely.  What I have outlined above is far less a stretch than, say, reasoning that McCain/Feingold is somehow consistent with the First Amendment.

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