The Corner

Thinking Out Loud: The McCain Amendment

I get email every day from people “demanding” to know my position on the McCain amendment. Much of it is goading, taunting and juvenile and clearly whipped up by sanctimony and righteousness elsewhere in the blogosphere.

This is just one reason I’ve been reluctant to weigh-in. I don’t respond well to “double-dog-dare” argumentation.

Another reason is that I just haven’t had time to bone up on the issue and as the level of sanctimony is so high in some quarters, there seemed to be a rush to judgment in the works. The pro-McCain Amendment fervor on the left seems driven by much of the same spirit that lead the anti-Patriot Act fervor a few years ago. Such bandwagons are unbecoming. It was Charles Peguy who once said, “It will never be known what acts of cowardice have been motivated by the fear of not looking sufficiently progressive.”

I also dislike the ahistorical nature of some of this debate. One sometimes gets the sense that the tactics being used by the Bush administration are so far outside the American tradition that previous generations would never have contemplated them. We all know in our sober moments this is nonsense on stilts.

But that’s all somewhat beside the point since this is a serious issue and there are serious people who support the McCain amendment and serious people who oppose it. I found Ramesh’s political argument very persuasive and it inclines me to support it. But I have one very big reservation that I need to learn more about before I can support it. From my reading of the amendment every terrorist in the world under American control can now claim the right to be exempt of cruel and unusual treatment as defined in the US Constitution:

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…

That just sticks in my craw. Our Supreme Court has, as I understand it, ruled that fairly minor pyshical abuse qualifies as cruel and unusual punishment in recent years. It’s one thing to argue that it’s unconstitutional for a cop to smack around a shoplifter, it’s quite another to say that it’s unconstitutional for an Army Ranger to smack around a high-ranking member of al Qaeda. Moreover, while I still need to read more, I can’t help but think this makes the US Armed Forces more of an extended police force than an army. There’s also the generic reluctance of allowing foreigners to make rights-claims under our constitution. Of course, there are some circumstances where it’s warranted but war doesn’t strike me as one of them.

I agree that our policies need to be clarified and that there are all sorts of good and moral arguments against torture. But this sounds like overkill to me.

But, I need to do more homework.

Jonah Goldberg — Jonah Goldberg holds the Asness Chair in Applied Liberty at the American Enterprise Institute and is a senior editor of National Review. His new book, The Suicide of The West, is on sale now.

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