This is an archived article that was published on sltrib.com in 2005, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
When legislation passes in the Senate by an overwhelming 90-9 vote, it is often a sign that it is either meaningless fluff or a bad idea. The McCain ''anti-torture'' amendment, which passed by such a wide margin in an initial test of strength and which will be up for debate again soon, is both - an instance of congressional grandstanding that also might prove harmful.
One part of the amendment bans ''cruel, inhumane and degrading'' treatment. John McCain himself says that if the amendment's prohibition against such treatment ''doesn't sound new, that's because it's not - the prohibition has been a longstanding principle in both law and policy in the United States.'' Ah. So why, then, is the McCain amendment necessary?
According to McCain, it is necessary because the U.S. maintains that the prohibition against cruel, inhumane and degrading treatment, which it agreed to in the Convention Against Torture, doesn't apply to foreigners held overseas. Indeed, Congress was careful to include this caveat when it ratified the convention in 1994. As legal analyst Andy McCarthy notes, instead of closing this loophole, the McCain amendment appears to perpetuate it by repeating the same language Congress used to carve it out in 1994. This is legislative sleight of hand in the cause of moralistic self-congratulation.
The other part of the amendment gives the Army Field Manual and its standard for interrogations the force of law. This is where the amendment will have bite. In theory, the manual could be rewritten to allow explicitly for the kind of stress techniques - keeping detainees awake for long periods, putting them in uncomfortable positions, etc. - that have been controversial since 9/11. The existing manual frowns on these methods, and a new version currently being formulated is likely to be even more restrictive, although it will probably leave key questions vague.
The McCain amendment, however, will make any leeway in the manual moot. Because it creates no specific safe harbor for stress techniques, has no definition of what is cruel and inhumane and what isn't, and has been accompanied by a fusillade of congressional rhetoric against Bush administration interrogation policy, it will be interpreted as banning any technique overseas that we wouldn't use with criminal suspects in the United States. This is an unreasonable standard, and one that McCain and his backers apparently don't have the gumption to state and defend openly.
A distinction has to be made between wanton abuses like those in Abu Ghraib and tightly controlled interrogations of top-level al-Qaida captives. Yes, prisoners should be treated humanely, and it will be a permanent blot on the administration's record that it didn't better control how prisoners were being treated in Iraq and Afghanistan.
But there are cases when tough techniques are probably justified. When al-Qaida leader Abu Zubaida, a planner of 9/11, was caught in Pakistan, he had been shot in the groin. Painkillers were administered selectively as an interrogation tactic. He coughed up information that led to the capture of other al-Qaida members. At Guantanamo Bay, Secretary of Defense Donald Rumsfeld approved - then eventually revoked - 16 aggressive techniques for Mohammed al-Qahtani, the 20th hijacker in the 9/11 plot. They involved isolating him, making him stand for long periods and playing on his phobias. They might have helped pressure him into talking.
Would McCain supporters not have been so harsh to Zubaida? Never made al-Qahtani stand? And do they want to make it illegal for U.S. interrogators ever again to make the choices they did in these two cases? It now seems obvious the pendulum swung too far toward tough treatment of our prisoners after 9/11, but that doesn't mean it should swing all the way in the other direction and outlaw techniques that are short of torture, but useful in unraveling what is an ongoing conspiracy to murder Americans.
The interrogation debate, above all, needs adult supervision. It hasn't gotten enough of it from the Bush administration, and it looks as though it won't get any from a preening Congress either.
Rich Lowry is editor of the National Review.