Thursday, November 10, 2005

Open Post

This is an open post on the McCain Amendment, specifying "Uniform standards for the interrogation of persons under the detention of the Department of Defense". It reads:


(a) IN GENERAL.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

(b) APPLICABILITY.--Subsection (a) shall not apply to with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

(c) CONSTRUCTION.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.


(a) In General.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction.--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.

(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(d) 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.

Those United States Reservations are found  here.


Here are some ideas which I think may be related to the subject.

  1. What is the cost of legitimizing torture? Can it be bounded?
  2. What is the cost of not using duress when it would yield an operational advantage?
  3. Does the appropriate level of duress vary with respect to the information sought? Should duress be "capped", so that it may not exceed a maximum no matter how urgent the information requirement is?
  4. Are exceptions or loopholes like rendition attempts to evade caps?
  5. If it is policy never to engage in torture why should any exceptions or loopholes be considered?
  6.  Does battlefield dominance make it possible to be more observant of humanitarian protections?

Reader comments are invited.


Blogger Martin Weiss said...

IMO McCain's language has some problems.

First, the legislation itself should distinguish between the treatment of 1. enemy soldiers and 2. persons engaged in combat without uniforms or otherwise unlawful and 3. persons engaged in combat using human shields, planted explosives on their person or other egregiously inhumane acts, etc. and 4. persons engaged in unlawful combat who a military panel has good reason to suspect holds actional intelligence that could potentially save the lives of civilians

Second, "degradation" shouldn't be excluded because a terrorist may claim virtually any unpleasant condition as degrading.

11/10/2005 07:06:00 AM  
Blogger James Kielland said...

Hmm... I'm not sure how to say this, but what I would regard as the most salient point about this entire debate (within US politics in particular and not necessarily here at Belmont) is that it would seem to indicate that plenty of people no longer really consider Al Qaida to be much of a threat and that they can go back to their domestic political warfare. Much like rival gangs who are more interested in dishing out violence to each other than they are afraid of the police.

Debates about table manners don't occur between those who are concerned about their survival.

11/10/2005 07:16:00 AM  
Blogger James Kielland said...

I suppose a problem with giving special rights to "official" state-based combatants is the fact that we are entering a period of warfare in which Clausewitz is becoming increasingly irrelevant. It appears as if warfare is increasingly about non-state actors and that this trend will only continue. To say that we won't torture in war if the opponents are a part of a legitimate nation state is really to make a very flimsy promise. It's like saying we won't torture the subjects of kings. The kingdom/monarchy is *essentially* obsolete as a form of government. The state is becoming increasingly less relevant, as well.

11/10/2005 07:34:00 AM  
Blogger buck smith said...

This law is a trade-off. We give up some operational advantages b/c the enemy knows exactly what we will and won't do. In return our military should have a much clearer set of rules to follow.

But this law like so many is still way too vague. It should list some sample activiteis that are permitted and are not. Is sleep deprivation torture? I read this law and I am not sure. Is repeated playing of the latest winner of the Eurovision song contest torture? It should be considered torture but under this law you can't tell.

11/10/2005 07:35:00 AM  
Blogger exhelodrvr1 said...

Very good post. I think that you have to take it on a case-by-case basis, weighing the potential gain versus the loss (i.e. public relations, future treatment of U.S. military taken prisoner).

And Happy 230th Birthday to the USMC!!

11/10/2005 07:44:00 AM  
Blogger The Crusader said...

Abolish the CIA, we couldn't possibly be worse off than we already are. The incompetence and laziness of the CIA are legendary in international circles. The only thing they have done competently in years is to conduct operations against the President. Destroy the snake pit and start over again from scratch.

11/10/2005 08:12:00 AM  
Blogger Jrod said...

Forgive my ignorance regarding its effectiveness, but what is wrong with using truth serum in certain cases? If it works, it seems like a pretty humane answer to the larger question.

11/10/2005 08:25:00 AM  
Blogger Daniel in Brookline said...

Excellent analogy, Andrew. I had some things to say about this a while back, but I didn't say it quite as neatly as you have.

In re McCain: he seems to have forgotten that some problems can't be solved by legislation. The law is a tool; as such, it should not be applied to all cases and all situations. (Or would you really want a society in which everything not compulsory is forbidden? I would not.)

On a different level, we need to be extremely careful about hamstringing our troops. In the final analysis, what we want -- and need -- are soldiers who will fight. We don't want them second-guessing themselves at every turn, concerned that they'll be court-martialed for doing their jobs. And I would expect McCain, of all people, to understand that.

Daniel in Brookline

11/10/2005 08:46:00 AM  
Anonymous Anonymous said...

We still have a lot of unanswered questions about Mr. McCain's proposal:

1) What is "cruel, inhuman, degrading"? Who decides? The Ninth Circuit Court of Appeals? Is a hotel with room service the standard? Basic military training in the USMC certainly would be prohibited; verbal stress, sleep deprivation, cold & heat, food deprivation, etc. are all involved. Boot camp is not injurious or life-threatening, just stressful. Why can't this be the line for interrogations?

2) We don't know how important interrogations are to the war effort. Helpful or vital? Is the "bad cop" vital to make the "good cop" work? Can someone give some empirical data on this to the Senators?

3) What will be lost if we write off prisoners as a source of intel? If the McCain proposal is strictly applied, that is where the U.S. will end up, at least against a trained and determined enemy.

4) Sirius_sir is right; if prisoners turn out to be just a logistical burden with no utility to the U.S., troops in contact with the enemy will not have an incentive to bother with them. And once the enemy figures this out, will they have an incentive to surrender, or fight to the death instead, thus forcing up U.S. casualties? There seem to be several ways that the McCain proposal might mean more dead Americans.

On the subject of the CIA, in our post

The CIA is dead. Long live the DNI.

we suggest that the Intelligence Reform Act will be used to gradually close up the CIA, which has no constituency remaining, except for WaPo reporters.


11/10/2005 08:50:00 AM  
Blogger Yashmak said...

I think jocko's final statement in his comment reflects my biggest concern with the language of this item.

What is 'degrading' treatment? Isn't being imprisoned in the first place degrading? It leaves us wide open for an endless array of lawsuits filed by every prisoner held as a suspect in terror related activities. Even a communal shower could be considered degrading if presented by the right lawyer! The language of this thing does nothing to give us a clearer set of rules to go by.

In fact, the reverse is true. The presence of the term 'degrading treatment' is terribly vague, and renders the whole thing a tremendous liability, rather than an asset.

11/10/2005 09:11:00 AM  
Blogger Cobalt Blue said...

We should rule out no method--none--in advance. Our enemies certainly do not.

And yes there are costs to engaging in torture--the cost of being disapproved of by other "more civilized" nations, for example--but it seems we are bearing that cost already. Cynical grandstanding by politicians on the issue is not going to earn us back that good will that is of doubtful value to begin with.

No pre-set limits.

11/10/2005 09:12:00 AM  
Blogger Sean T. Collins said...

Amid all the talk of the effectiveness or ineffectiveness of torture, as if that is what the debate ultimately centers on, I'm wondering if the question of whether or not torture is moral, regardless of its independence, has not been lost. If it has been, so too has a whole lot more.

11/10/2005 09:14:00 AM  
Blogger goesh said...

This same debate would rage if a couple of dirty nukes were set off in DC and NYC. The NVA held McCain and the rest of the POWs in utter contempt. Had he any real critical information they would have broken him in about 15 minutes by sticking slivers of bamboo in his testicles and lighting them on fiew. Does this fool really think he was important to the NVA and national security? While the debate rages, they just found the makings for 15 bombs in Austrailia, 3 bombs went off in Jordan and 50+ died in Iraq from another bomb. I say the jihadists hold us and our jursiprudence with even more contempt than the NVA held McCain. Can you blame them? It represents fear, hesitancy and weakness to them and only fuels their hatred.

11/10/2005 09:14:00 AM  
Blogger Sean T. Collins said...

That should have been "regardless of its effectiveness," not "independence." My apologies.

11/10/2005 09:15:00 AM  
Blogger RWE said...

The main problem with this law is that it is like giving ethics classes:
If the people it is directed at really need it in order to know how to behave, then the situation is hopeless.
Its ultimate purpose is not truly directive but is "CYA" at the senior levels. It gives them a club with which to beat people attacked by the Left and a shield that says "It wasn't OUR fault."
Finally, in view of the fact that killing someone is not "cruel and unusual punishment" - yet - it will probably result in more prisoners being disposed of with extreme prejudice.

11/10/2005 09:27:00 AM  
Blogger Jack said...

Indeed Stuart.

Victory is the aim.

For anyone interested, I attempted to cover "torture" in depth, here:

In my mind, McCain's a political opportunist. He put out a nice vague bill but made no effort to define what it really covers - "degrading" is hardly enough. He knows if it really came down to specific examples and methods, we'd have some difficult decisions to make, so he just takes the publicity and uses political language that is equivalent to proclaiming that "we like fluffy bunnies." His consensus would fall apart if we really got down to the definition, so he doesn't bother, and takes the MSM puff points for standing up the Bush administration and harming our international reputation.

11/10/2005 09:30:00 AM  
Blogger Doug said...

Senators staff and budgets should be slashed.
CIA eliminated.
Prosecution of the multiple Anti Bush leakers should commence.
The powers of the CIC are being stolen by the Washington Bureaucracy and given to the courts.
The process is being driven by crass political calculation and opportunity, not reason and national interest.

11/10/2005 09:39:00 AM  
Blogger John Aristides said...

It's a great amendment if we are truly to become a global empire of law and order. In that respect, granting 5th, 8th, and 14th amendment protection to foreign citizens who murder without warning and without the proper apparel is just one step on the path to universalizing the principles of the greatest political document ever created: the Constitution of the United States of America. That is not a bad thing, in principle. If the world is to be governed by consensus, I would rather the consensus be drawn from, and built off of, our founding document.

That said, I do not think that is the reason behind this amendment. The justifications put forth in support of it are substantively shallow and logically weak. For instance, the statement that such restrictions will lead to a greater decency in the enemy's handling of our troops is unfounded and unproven. It is a simple, blind assertion. We have every reason to believe that Abu Ghraib helps in recruitment, but what data do we have that beheadings and other tortures increased in likelihood because of it? None, and that is the problem.

The problem is that a vast segment of our population believes that we can affect the mentality of our enemies by being nicer. Out of this premise comes the belief that, if anybody dislikes us, it is our fault. The final step in this journey of thought is to embrace "being liked" as the sole metric by which to judge our foreign policy.

As I said above, I would not be opposed to this amendment if it were a strident assertion of American principle and an unapologetic statement that our founding document should, and will, govern the world's peoples. But the amendment is not one of confidence and strength. Instead, it was composed, and is being sold, as a necessary salve for a reputational hurt that causes us embarrassment, and weakness. That is unacceptable--and untrue--and therefore I oppose it.

11/10/2005 10:15:00 AM  
Blogger said...

I don't support a policy of torture, but I don't support the McCain Amendment either. Wars are complicated things in which numerous judgment calls must be made at every level of command. The executive rightfully has a great deal of inherent authority to conduct operations. I do not favor the McCain Amendments for the same reason that I would not favor Congressional legislation mandating that our military uses Napoleonic tactics, conducts an invasion on a particular day, or should conduct torture under judicial oversight (as Alan Dershowitz has argued).

Torture degrades the torturer as well as the victim. It creates a race of monsters living in one's society and tends to erode the esprit de corps of the military in a liberal democracy. The case for torture is most often made in the instance of the "ticking time bomb," the individual who, if tortured, can reveal information that will save millions of lives. But the problem of ticking time bombs is that they do not reveal themselves as such. One never knows if a particular detainee is a ticking time bomb. Torture becomes addictive to an organization that resorts to it on the principle that no stone should be left unturned.

Torture should not be permitted in military manuals or otherwise. It is not permitted today in military intelligence manuals, for instance. There is no lacuna in military or CIA doctrine requiring a complicated torture manual, complete with Alan Dershowitz's seal of approval. But, there should not be a law specifically regulating the military and CIA's interrogation techniques. The McCain Amendment goes beyond torture. It could proscribe and open to judicial review basic psychological pressure techniques that are time tested, cause no permanent harm, and work effectively. Some sleep deprivation, threats, psychological pressure, and techniques of disorientation are appropriate in the war on terror. Not only do they work, but they are more easily controlled and not particularly cruel. I would not want to see judicial or congressional meddling in these areas, and that's what the McCain law would create. Further, it would open up the door to more vexatious interventions by other branches of government in the preeminent executive task, waging war.

But what of torture? Is it never necessary? Perhaps it is, but the law should not say so, as it represents an across-the-board community judgment, that is, a generally applicable rule. Such an awful decision should be made by the military interrogator or operative on the ground, aware of the potential legal consequences, and steeped in the military's traditions of respect for the law of war. That is, as a true last resort. This is why an executive pardon power exists. Certain acts should not be socially condoned and should most often be punished. But under the right circumstances, they can also be forgiven. Far from requiring prior legal approval, such acts can be deemed necessary only when undertaken against the letter of the law. Any other approach would make their use too frequent and too degrading, both to the participants but to the broader society--a society whose moral authority would be undermined by any formal permission for torture. That said, particularly in war time, a broad use of the pardon power prevents the law and its mechanical operation from inflicting too much injustice on those making these touch decisions. At the opposite extreme from a torture code, such prosecutions would undermine respect for the law for the opposite reason, an absence of mercy

11/10/2005 10:51:00 AM  
Blogger Red River said...

The next Bill will say the Military cannot conduct any operations that are not listed in the Field Manual.

You cannot tie peoples' hands.

This Bill will be a whipping stick to play "gotcha" after the fact.

11/10/2005 10:57:00 AM  
Blogger Paul said...


Is torture moral? I don't think anyone here, at least in the abstract, would make the argument that it is.

But, let us say I see a man running towards a bus of school children carrying a bomb. Is it moral for me to shoot him dead before he gets there? I think the answer is yes, or at the very least, it's wouldn't be immoral.

So if I can shoot a man to prevent the deaths of innocents, I don't find much problem with some bamboo under the fingernails to prevent similar loss... never mind a pyramid of buttcrack.

As everyone else has mentioned this legislation is way too vague.

Additionally, I would recommend the book "The Interrogaters" by Chris Mackey. Very detailed inside view of the interrogations in Afghanistan.

11/10/2005 11:05:00 AM  
Blogger Doug said...

aristedes says,

...a vast segment of our population believes that we can affect the mentality of our enemies by being nicer.

...Out of this premise comes the belief that, if anybody dislikes us, it is our fault.
The final step in this journey of thought is to embrace "being liked" as the sole metric by which to judge our foreign policy.

...the amendment is not one of confidence and strength. Instead, it was composed, and is being sold, as a necessary salve for a reputational hurt that causes us embarrassment, and weakness. That is unacceptable--and untrue--and therefore I oppose it

Chris Matthews had on an ex CIA Covert Agent who worked on bin Laden during the Clinton Admin.
Has a book out, which is fine and standard procedure these days as long as it trashes Bush.

...Jordan is Bush's fault:
We signed their death warrant by invading Iraq.

...Saddam was our greatest ally in fighting bin Laden. (!)

...we're playing into Al Queda's hands
etc etc
He was followed by a professor.
(who served as defense council for the Florida College Terrormaster Professor)
Distinguished professor agreed and elaborated.
.It's all our (Bush's) fault.
Hat tip Limbaugh.

11/10/2005 11:23:00 AM  
Blogger desert rat said...

welcome back
hope your hiatus was pleasurable.

The US is exceptional, we stand for the greater good.
The entire discussion come down to W's #6. The dominance of power.
He mentions it in a battle field context. The self imposed standard of excellence for US is more than that. It is a combination of the "White Mans Burden" and a self sensed Moral Superiority. It goes hand in hand with American Exceptionalism. I heard a faceless politician remarking that the American People expected our side to be a beacon. To be better than the rest.

11/10/2005 11:44:00 AM  
Blogger Mike H. said...

As a staff sergeant in the Marine Corps, I found that if I made a threat it would have to be done as I had stated or I would be considered weak. Strangely enough, if I merely stated "I will have to think about what I'll do." The individual who was to be disciplined would generate more terrifying images than I could instill by telling him what was in store. McCain seeks to destroy that ability, and like tefta I don't trust him.

11/10/2005 12:29:00 PM  
Blogger diabeticfriendly said...

Non-uniformed terrorists have to be captured ALIVE in order to "torture" them...

Simply put, if these terrorists never make it off the battlefield alive it's a mute point...

Long Live Hollow Points!!!

11/10/2005 01:26:00 PM  
Blogger geoffgo said...


What makes you think the research on interrogation you propose has not been conducted? Good aggressive techniques work. The discussion is about the will and the aegis to use it.

The case files you suggest are pretty much in use today; except that politicians aren't included (yet). If they are, they will leak.

As to the effectiveness, look at the takedown occurring within the AQ hierarchy. Did you think it was happening by accident, or luck?

War is not a moral issue; it's about survival. Not surviving, because we are too gentle, seems to be a ridiculus and suicidal position.

IMO, the US and its allies must make it very clear to Islam worldwide, that we will use any methods, including the use of pig fat and menstral fluids, and everything else that is repulsive to Islam to wage this campaign.

Why should these methods inflame the Islamic popuplation, when they are used only on the supposed highjackers of their religion?

Seems to me this course of action will help us establish if there are any moderate Muslims, or if we have to confront and nullify all 1.2B of them.

11/10/2005 01:53:00 PM  
Blogger Jrod said...

thank you Dave h--that's a start at least.

11/10/2005 01:58:00 PM  
Blogger enscout said...

McCain is grandstanding.

He should know better than anyone the ineffectiveness of information gained by using out & out torture.

This as opposed to effective interrogation techniques that a realist would consider "not torture" (me being made to listen to rap).

OT - Happy 230th USMC!! Semper Fidelis!

11/10/2005 03:14:00 PM  
Blogger exhelodrvr1 said...

The problem with that is that then we lose the information that leads us to the rest of the cell.

11/10/2005 03:15:00 PM  
Blogger ShrinkWrapped said...

I agree with Andrew on this: This is a situation that cries out for "constructive hypocricy"; we should never legalize torture (though, as many here have pointed out, defining torture is not as clear cut as McCain likes to believe and would seem to be the first order of business) however, if there are occasions when an agent is willing to risk prosecution because the information sought is so crucial as to make the risk worthwhile, he should do what his conscience tells him. The threat of prosecution would make the worst kinds of excesses much less likely and the reality that "good intentions" would tend to mitigate actual prosecutions argues in favor of maintaining clear lines in the light of day and somewhat fuzzier lines in the dark (which is merely a description of reality in any event).
In terms of "truth serum", sorry, but there is no such thing. Every agent that has been labeled "truth serum" has been a drug that increases the users suggestability. Psychiatrists used Sodium Pentathol at one time to try to recover "repressed memories" but it turned out we were creating memories where none existed prior to our suggesting them (the Psychiatrist and the patient were unaware that there was any collaborative "suggesting" going on; it was like a Quiga board which appears to move of its own volition but is being unconsciously controlled by the participants.) There do exist rare "repressed memories" but there are no short cuts to evoking them.
Finally, McCain seems to have fallen in love with all the accolades he gets from the press and the democrats; as a result, he has fallen prey to the prime fallacy of the intellectual narcissist who believes his ideas are more powerful than the reality they only partially represent.

11/10/2005 03:46:00 PM  
Blogger Doug said...

So we will torture ourselves discussing torture (as MSM hangs out our "dirty" laundry for the world to savor), thus giving he and the dems have a clear field of fire on GWB.
(and also the US Military, but that is regarded as inevitable collateral damage - they support the troops and are only acting on their extreme patriotism)

11/10/2005 03:47:00 PM  
Blogger demosophist said...

It seems to me that about the only arrangement one could make that's ethically consistent is to subject detainees only to treatment that an American volunteer is willing to undergo themselves. That would appear to be at least one fair way to resolve the ethical dilemma of "limits." If an interrogator could not convince a volunteer, by logical and truthful argument, to subject themselves to the same harsh treatment as the detainee with important information then... the information is apparently not important enough to warrant that treatment.

11/10/2005 04:23:00 PM  
Blogger Red A said...

Rendition to Iraqi forces will happen more and more often with or without this law.

This will bring up the issue again and again, since the Iraqis will not always use the soft touch.

I suggest pass the law and deal with the consequences of not monitoring idiots at Abu Ghraib.

This kind of law of course should have been passed right after 9/11 so as to not get our troops in trouble when 3-4 years later the public lost its appetite.

11/10/2005 05:51:00 PM  
Blogger sam said...

Senate demands report on "CIA prisons":

Vice President Dick Cheney has worked behind the scenes to press Congress to exempt the CIA if it imposes detainee rules, arguing restrictions would impede efforts to get information to block acts of terrorism.

Democrats and a number of Republicans have rejected Cheney‘s plan, saying it would be seen as a license for the CIA to engage in torture.

Senate Demands

11/10/2005 06:17:00 PM  
Blogger Doug said...

It is not really a question of torture vs no torture IMO.
It is a question of NEW LAWS regarding torture which are the product of people who in truth are much more concerned about the political consequences and fallout of this new law than they are with our moral position and etc.
They are NOT primarily motivated by the tender sensibilities of the enemy, moral or ethical matters, (We'll become no better than them and other such sophmoric pap.) and all of the other fluff in their sales pitch.
Sam's post is a great case in point:
Demonizing Cheney is the No. 1 objective of many if not most of these turncoats.

11/10/2005 06:49:00 PM  
Blogger diabeticfriendly said...

exhelodrvr said...
The problem with that is that then we lose the information that leads us to the rest of the cell.

yeah, but if we aint allowed to "question" them, and they have more rights than a innocent civilian, i say shoot them

11/10/2005 07:13:00 PM  
Blogger Doug said...

Mark Steyn on Sophist Arguments in Time of War.
I do think that what's pathetic about all Western countries, including the United States, including France, including Canada, and a lot of other countries, is that

they make these sort of high school sophist arguments about terrorism, as if it's some sort of theoretical debate.
It's not
We're dealing with a very difficult situation here.

And if you accord to terrorists all the rights of somebody who gets arrested for holding up a liquor store in Des Moines, you are going to lose to the terrorists, because when you accord them the full rights of somebody who is a criminal, you make it impossible to prosecute this as a war, which is what it is.
. Mark Steyn - Radioblogger .

11/10/2005 08:24:00 PM  
Blogger Doug said...

Pork says,
"i say shoot them "
We are better than that.
Catch and release.
(and pray someone ELSES sons pay the price - at the hands of the releasee, and from the lack of respect engendered by such "compassion")

11/10/2005 08:28:00 PM  
Blogger Doug said...

Perhaps Pork can confirm this, but I am quite sure the Israelis have no innane Senator Church restrictions on using less than lilly white sources both at home and abroad.
One of Hewitt's guests yesterday said Israelis were evacuated from the hotels prior to the attacks.
He also said the Israelis work very closely with the (police state like) Jordanian authorities.
(dummy that I am, I find it hard to visualize how that worked in with them not being able to alert the Jordanian's in time to avert at least some of the attacks.)

As Mark Steyn said today, you may have your objections to Jordan's methods, but at least (until this week) they have maintained security in a sea of violence.
Mark always stayed in the Grand Hyatt while in Jordan in transit to the Sunni Triangle and etc.
He was shocked to say the least.

11/10/2005 08:38:00 PM  
Blogger wretchardthecat said...

The US practice of forgoing some military advantages to preserve principle or avoid political trouble has long been embodied in rules of engagement. Examples are when a person may be fired upon, what targets (e.g. foreign embassies) are inviolable, what clearances must be sought etc. These restrictions are accepted, and there is no reason why limits on interrogation should be different. One of the reasons the US can afford restrictive ROEs is because it possesses an overmatching capability. It can afford to be careful.

But it cannot afford to be too careful. For that reason ROEs can change as a situation develops. One valid question is whether the ROEs for interrogating prisoners are best set by the courts, or whether another system, such as oversight or review will not serve the purposes better.

Some commenters here have been mindful of the danger that when ROEs are too restrictive, there is an incentive to cheat or to avoid the problem by taking no prisoners, which then defeats the purpose. Many countries formally subscribe to the Geneva conventions but in practice ignore them altogether, so that their actual treatment of captives is brutal indeed, though they pay lip service. While there have been some sadists in US service, by and large, the standard of treatment of captives in US custody is far higher than those of other countries; higher probably than that of France, which is formally blameless but in practice less so, as we are now learning.

So it seems to me one question is whether the current system, for all its faults, has certain aspects worth preserving. The question is whether by adopting the McCain amendments the current system, which is probably one of the best in the world in practice, will get better or whether there will be an incentive to make it worse.

11/10/2005 08:46:00 PM  
Blogger Pofarmer said...

"d) 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,"

That part right there makes my hair stand on end. When you start applying the constitution of the USA to enemy combatants I have to think that somebody don't have their head on straight.

Also, it's my understanding that the Military already has prohibitions on torture, and the Geneva conventions are taught extensively. Do we torture? Because, frankly, Abu Ghraib wasn't torture. As another poster said, I've never seen anything except from the MSM or the Dims that suggests that we do. And those have all been proven false and blown over. If there have been improprieties, they have been punished by the military justice system. What good can be had by dragging this through the civilian courts? I don't know what McCains motives are here. Maybe this is just a backhanded way to seriously undercut the war and further hurt recruiting efforts. It sure can't help. Can you imagine being a soldier under these rules. "Now c'mon there Sam. Don't get cross with this guy that just exploded an IED or we'll have to haul your butt in!" No thanks. I do know that I'm certainly glad he's not the POTUS. I just wish we could get rid of him. If this turns out half as bad as CFR it could torpedo our own ship.

11/10/2005 09:06:00 PM  
Blogger Fat Man said...

It is interesting that the discussion of this proposal quickly becomes a discussion of torture. Of course that is not what it is about.

The US is already a party to the Convention against Torture as recited in Sec. 3 of the proposal. What the law prohibits is "cruel, inhuman, or degrading treatment or punishment." that covers a lot of waterfront that is not torture.

It proposes to define those forbidden things in terms of the existing constitutional law. Before this proposal is adopted it might be best if we were to review the extensive case law on these subjects.

Most of you will no doubt be dismayed to discover that federal judges have regulated ever nook and cranny of prison life under these rubrics. It is indeed possible that some federal judge has condemned as inhuman, living conditions that the prisoner would find to be middle class comfort in his homeland.

I see no reason accord these rights to non-citizens captured in the war against terror. Nor do I see any reason to tie the Presidents' hands in the conduct of this or any other war. Finally, the thought that the federal judiciary would become involved in military matters scares me witless, and it should frighten any other American. Our federal judges have the collective good sense of cage full of rabid hamsters. Allowing them to second guess the military is a terrible idea.

11/10/2005 10:11:00 PM  
Blogger sam said...

Couple freed in Iran after 13 days:

They were finally freed on Friday and have arrived home in Dubai.

Mr Wise told the BBC that they were not physically harmed but had been subjected to "mental torture".

Couple Freed

11/10/2005 11:59:00 PM  
Blogger Doug said...

This comment has been removed by a blog administrator.

11/11/2005 03:28:00 AM  
Blogger Doug said...

pofarmer says,
Can you imagine being a soldier under these rules. "Now c'mon there Sam. Don't get cross with this guy that just exploded an IED or we'll have to haul your butt in!" No thanks.
We don't even have to imagine:
When I saw the Drudge Link, Iraq battle stress worse than WWII.
I said, BS!
...then I read the article and said, yeah, I see the point.
SENIOR army doctors have warned that troops in Iraq are suffering levels of battle stress not experienced since the second world war because of fears that if they shoot an insurgent, they will end up in court.

There doesn’t appear to be any overt consideration or understanding of the pressures that our soldiers are under.

“The unpopularity of the war at home and a belief that firing their rifles in virtually any circumstances is likely to see them end up in court are sapping morale.”

One corporal said that troops arriving in Basra were confronted by warnings from the Royal Military Police. “They make it clear that any and every incident will be investigated. It is also made clear that if you shoot someone, you will face an inquiry that could take up to a year.

“The faces of the young lads straight out of training drop as the fear of being investigated strikes home and many ask whose side the RMP are on
Iraq battle stress worse than WWII.

11/11/2005 03:29:00 AM  
Blogger Doug said...

Wretchard comments,
The question is whether by adopting the McCain amendments the current system, which is probably one of the best in the world in practice, will get better or whether there will be an incentive to make it worse.
I find it hard to imagine who, other than those with perverse motivations such as McCain and the Dems, would consider that a viable question.
It defies credulity, given what we have already seen happens when the system is changed (such as Gitmo) to be more "open" to domestic notions of "rights," and etc.

To my mind, Robert Schwartz does an excellent job of sealing the argument in a nutshell.
And how better to describe the present state of our federal judiciary than,

"Our federal judges have the collective good sense of cage full of rabid hamsters." ?

Unless one does not think many recent rulings of the 9th Circus makes it appear that they would have a hard time even matching that standard.

Some of the rulings of the Supremes are only marginally better.

Finally, who but those completely isolated from the News, has not seen how EVERY ISSUE that can be demagogued, will be?
"overmatching capability" gives no shelter to the individual soldier caught in this web, nor does it keep dangerous characters from being released under a newly and perversely altered system.

Can of worms, indeed.

11/11/2005 03:32:00 AM  
Blogger enscout said...


It amazes me that you talk so fluently out of both side of your mouth. Now we haven't had ENOUGH deaths in Iraq "to be serious about the subject of interrogating unlawful enemy combatants". I guess I can relax now when I read your rants about American casualties 'cause I know you're not serious.

I'm sure most victims of torture did sing like a bird. I'm sure most tell their torturers whatever they think they want to hear - reliable or otherwise.

Many here have it right. There are existing rules and agreements that outline acceptable levels with regard to torture. This is not the time in history to soften pur definition.

11/11/2005 04:26:00 AM  
Blogger 3Case said...

McK(eating)ain is a dope. In a career over-littered with reasons we should NOT trust his thought processes and the products thereof, this attempt to legislate is just another brick in the wall.

One would think that a guy who did years in tortured captivity would appreciate that the micromanagement of his bombing runs by people (McNamara and "the Best & Brightest") living cosseted lives FAR away from the fight most likely got him into that captivity and torture.... Without good and current information, the currency for making up the difference on the ground is the lives and limbs of the, while Sen. McK(eating)ain and the DC solons natter over words and punctuation, the troops will take the beating....

11/11/2005 06:01:00 AM  
Blogger desert rat said...

I believe C4 was discussing civilian deaths, here in US, not those of our military overseas. In either case he is correct. The losses in Iraq have been amazingly light. One reason perhaps for the lack of success in obtaining our military objectives, until just recently. If we were losing men and gaining ground it would not be as dismal as losing men and giving the ground back. While it is true that this policy has been changed, we now "secure and hold", the damage has already been done.
The lack of aggresive action, for over a year, as we garrisoned Iraq, but did not patrol it, from early '94 through mid '95, will not be highlighted as a success in the annals of military history in the future.
This lack of success and talk of decades of unending and unwunnable war, instead of dogged pursuit of victory, is what has lost the US Public.
It is not the MSM that is at fault, it is the Presidient and his Administration that has failed to communicate a coherent message.
The problem is not the messenger, the challenge and the failure is at the source of the message. Where is Bush and monthly War updates to the people, why does he not use the "Bully Pulpit"?
Why is no one held accountable for failure? At the CIA, at Dept of State and in the Military?
The War against the Mohammedan Facists, on the road to the War on Drugs redux.

McCain's Bill is eyewash, a feel good attempt to be a "Hawk that cares". Just another page out of the Campassionate Conservative political playbook.

Why not Osama?

11/11/2005 06:40:00 AM  
Blogger The Wobbly Guy said...

A coherent message will only give the MSM more ammunition. You can bet your last dollar they will try every method to pervert, corrupt, selectively discard, and distort whatever Bush has to say.

11/11/2005 06:54:00 AM  
Blogger desert rat said...

If the President and his team had a message, developed the talking points, played hardball, they could get their message across. The failure to even try is pathetic. To ask my son and the sons of others to risk life and limb, while the Administration will not risk communication with the Public for fear of what? Lower poll numbers? Support for the President and the Iraq situation will bog down the enite Mohammedan Facist War. It will be lost, not on the TV, but in the White House. Ineffectual leadership is just that. It is not the fault of E.D. Hill nor Chris Wallace nor even Dan Rather.
Authority can be delegated, but not Responsiblity. That stays with the man in charge, George W Bush. The failure to communicate with the People is his, and his alone.

11/11/2005 07:01:00 AM  
Blogger Charles said...


In Flanders Fields

In Flanders Fields the poppies blow
Between the crosses, row on row
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe
To you from falling hands we throw
The torch; be yours to hold it high
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders' fields.

John McCrae

McCrae's "In Flanders Fields" remains to this day one of the most memorable war poems ever written. It is a lasting legacy of the terrible battle in the Ypres salient in the spring of 1915. Here is the story of the making of that poem:

Although he had been a doctor for years and had served in the South African War, it was impossible to get used to the suffering, the screams, and the blood here, and Major John McCrae had seen and heard enough in his dressing station to last him a lifetime.

Sickened by what he had seen during the Boer War, John McCrae nevertheless signed up in August 1914, and headed for France with his horse, Bonfire, in tow. He would have found few opportunities for riding in that hell on earth. Knee deep in mud and freezing water, men's feet rotted where they stood, waiting for the next attack of gas to insinuate its way down the trenches, or the signal to go "over the top", often into direct machine gun fire.

McCrae wrote "In Flanders Fields" the day after presiding at the funeral of a friend and former student.

As a surgeon attached to the 1st Field Artillery Brigade, Major McCrae, who had joined the McGill faculty in 1900 after graduating from the University of Toronto, had spent seventeen days treating injured men -- Canadians, British, Indians, French, and Germans -- in the Ypres salient.

It had been an ordeal that he had hardly thought possible. McCrae later wrote of it:

"I wish I could embody on paper some of the varied sensations of that seventeen days... Seventeen days of Hades! At the end of the first day if anyone had told us we had to spend seventeen days there, we would have folded our hands and said it could not have been done."

One death particularly affected McCrae. A young friend and former student, Lieut. Alexis Helmer of Ottawa, had been killed by a shell burst on 2 May 1915. Lieutenant Helmer was buried later that day in the little cemetery outside McCrae's dressing station, and McCrae had performed the funeral ceremony in the absence of the chaplain.

The next day, sitting on the back of an ambulance parked near the dressing station beside the Canal de l'Yser, just a few hundred yards north of Ypres, McCrae vented his anguish by composing a poem. The major was no stranger to writing, having authored several medical texts besides dabbling in poetry.

In the nearby cemetery, McCrae could see the wild poppies that sprang up in the ditches in that part of Europe, and he spent twenty minutes of precious rest time scribbling fifteen lines of verse in a notebook.

A young soldier watched him write it. Cyril Allinson, a twenty-two year old sergeant-major, was delivering mail that day when he spotted McCrae. The major looked up as Allinson approached, then went on writing while the sergeant-major stood there quietly. "His face was very tired but calm as we wrote," Allinson recalled. "He looked around from time to time, his eyes straying to Helmer's grave."

When McCrae finished five minutes later, he took his mail from Allinson and, without saying a word, handed his pad to the young NCO. Allinson was moved by what he read:

"The poem was exactly an exact description of the scene in front of us both. He used the word blow in that line because the poppies actually were being blown that morning by a gentle east wind. It never occurred to me at that time that it would ever be published. It seemed to me just an exact description of the scene."

In fact, it was very nearly not published. Dissatisfied with it, McCrae tossed the poem away, but a fellow officer retrieved it and sent it to newspapers in England. The Spectator, in London, rejected it, but Punch published it on 8 December 1915.

McCrae was to number among the 9,000,000 fatalities that vicious, fratricidal war of attrition would claim. His asthmatic condition, exacerbated by poison gas, eventually led to pneumonia and meningitis, and his death in January of 1918.

11/11/2005 08:08:00 AM  
Blogger Unknown said...

MaCaine has a good first person understanding of what is involved in torture. We should be careful not to sink to the level of those we are trying to defend against. Because if that happens they have won.

I hate to use a Hollywood analogy but the movie "The Siege" dealt with this point very well.

There are two wars being going one Military and the other for the hearts and minds of people in the Arab world. We may win a tactical miliary victory but lose the overall strategic war by creating another generation of people waiting to continue the war for another thirty years.

11/11/2005 08:17:00 AM  
Blogger diabeticfriendly said...

sfrcook said...
How silly of you Enscout, don't you know 3000 deaths on a day of peace is a pin-prick. 2000 dead after 21/2 years of warfare is evidence of our failure. Perhaps we require another "pin-prick" in Iraq before Cedarford will afford our mission there his definition of success.

we actually israel has suffered 21 "twin towers" in the last 4 yr, but the world and the usa say to israel, give land and make peace, dont overreact

truth is, one innocent life has value, however, look at Vietnam, 58,000 dead americans look at ww2..

America doesnt understand we are really at war. Islam around the globe does. I have said ti before and I will say it again, there is only ONE group of RADICAL ISLAM in the world and it here in the USA, they preach living together and non-violence. NORMAL islam around the world is NOT a religion of PEACE, its a faith of "SURRENDER to ALLAH"S WILL" and it is the world's islamic population that are it's will.....

11/11/2005 09:38:00 AM  
Blogger Rick Ballard said...


It's an amendment to an appropriations bill. McCain lacks the courage to propose it as stand alone legislation. President Bush can veto the bill and it would not be passed over his veto. I will not speculate as to whether the President will in fact veto it.

The proposed amendment lacks any utility whatsoever. It does not define practices other than to refer to an Army Field Manual that already takes into account the underlying statute mentioned. It is as circular a piece of crap legislation as I have ever seen and is meant solely to puff the Senatorial buffoons who promulgated it.

McCain is an idiot with an ego. He will be neither missed nor much remembered when he passes from the scene.

As to limits regarding duress imposed upon terrorist captives - anything beyond the levels that the US Armed Forces imposes upon volunteers undegoing SEREs training should be carefully supervised by responsible parties holding the rank of E-7 or above and be in conformance to our treaty obligations.

11/11/2005 11:36:00 AM  
Blogger enscout said...

Cederford said:
"since there is widespread disagreement on the definition of torture. And what constitutes "humiliating or degrading" activity. Given the fluidity of definitions, the "rules" simply don't exist. Not when an Islamoid can claim that failure to stop questioning so he can get one of his 5X daily bows to Mecca done is "degrading", a female guard is "humiliating" and failure to allow him 8 hours of sleep a day on a comfortable bed is "torture" and when half the US Senate and 100% of the MSM and EU Bureaucrats agree that it is whatever the Islamoids feel it is."

You're preaching to the choir.
Just because these entities you mention do not have a grasp on the realities of the conflict doesn't mean the "rules don't exist. Our military has Rules of Engagement. The Geneva Accords exist, although we agree they may not apply for non-uniformed, non-military combatants. We don't need more rules. Don't let "them" define it.


I guess I don't delineate between civilian deaths and those of our military. I understand that in conventional war there is a distinction, but this is not a conventional war. Every American that died on 9/11 was a casualty of this war as are those who die in combat in Iraq & Afghanistan.

You're absolutely right about the PR deficiencies on Bush's part. I watched his Veteran's Day speech today & it was well prsented. Problem is, it may be too little - too late. I'll be damned if I can figure out how the person holding the most powerful post in the world can't find a decent PR man.

11/11/2005 11:50:00 AM  
Blogger enscout said...

RE: your
Bush promised a "New Tone" when he acheived office in '01. It's obvious now that by this he meant he was going to try to beat the lefties at their own game. Maybe trying some sort of Clintonesque triangulation. Try as he might, he certainly hasn't gained any friends amongst their ranks.

Well, we keep waiting for a payoff that never comes. He's become little else that an appeaser when it comes to most domestic issues.

He's in trouble with the right because he's compromised his princple. He's been hated by the left because he knows how to win.

11/11/2005 11:59:00 AM  
Blogger desert rat said...

Even with all the casualties combined, it is still not much of a War. The whole thing does not add up to D-Day in WWII.
It adds up to about a month or two's worth of auto accident deaths here in the US.
There is a new metric to this War, but most of the Public is uninvolved in it's purpose, preparation or prosecution.

There is no public indication we are at War, unless a family member is in the deployable military. Little magnets on car bumbers not withstanding.

The talking heads cannot even agree there is a Global Mohammedan War, we are redebating the invasion of Iraq, when we should, instead, be declaring Victory.
The Iraqis first real election is in 30 days. The Opfor is down to fighting for Ramadi and fleeing to Syria.
Miscommunication and a lack of Victory Strategy is the primary problem, not mis-reporting by the MSM. The MSM is, and has been, a known factor. If Bush & Company cannot handle that situation they do not deserve the job.

11/11/2005 01:16:00 PM  
Blogger Mike H. said...

UCMJ. Art. 93
"Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct."


(1) That a certain person was subject to the orders of the accused; and

(2) That the accused was cruel toward, or oppressed, or maltreated that person.


(1) Nature of victim. "Any person subject to his orders" means not only those persons under the direct or immediate command of the accused but extends to all persons, subject to the code or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless whether the accused is in the direct chain of command over the person.

There is another paragraph with examples.
The full text of the Morgan UCMJ is here. The standards indicated are the standards at the time the article is invoked. McCain would try to override the ability to maintain the flexibility of the article as written. It ain't broke, he should stop trying to fix it.

11/11/2005 01:45:00 PM  
Blogger Doug said...

See my 3:36 PM post in the PREVIOUS THREAD for an absolutely must read Steyn piece.
Europe may well alreay be doomed.
(as some of us strongly suspected anyhow)

11/11/2005 03:40:00 PM  
Blogger enscout said...

D Rat:

"Even with all the casualties combined, it is still not much of a War."

In terms of casualties, you're absolutely right.

In terms of the future global implications, there's never been anything like it.

The folks who are prosecuting this war and those who support their efforts must surely the feelings of Winston Churchill during the battle of Britain or Thomas Paine as he penned "These are times that try mens souls."

I was born and grew up amidst the Cold War. It was, as is the current struggle, waged on a global scale, between two opposing idealogies. Korea and Vietnam were the major pitched battles of that war and accounted for the majority of it's casualties; something we've yet to see with this conflict.

The difference in it, the Cold War, and this War on Islamofascism, is the numbers - so far!

Whereas the Cold War featured masses of humanity bound to differing idealogies, knowing the stakes, and activley or passively involved in the race.

We have two diametrically opposed idealogies, small in number, each of whom realize the stakes. In the middle are millions who just don't seem to get it. Men like the two Johns (McCain & Kerry) who are still using related events for nothing more than to curry political points.

It could be too early for simpleminded folk like myself to get a true perspective on the way events unfold, but I think we are living in critical times & don't think we can afford to make many reckless mistakes.

McCain's legislation makes the problem worse for our side.

Lead, follow or get out of the WAY!

11/11/2005 04:20:00 PM  
Blogger enscout said...


Re: your 1:14

"On the other hand, in this world, you work with what you have. And if you want to win the GWOT, you (we) have George Dubya".

George gets 7's or 8's for setting his priorities. Although he's failed until recently to VERBALIZE the problem, his agenda has been a correct one IMHO. His big miss is ignorance of our southern border problem.

You Said:

"Bush's main problems lie in his not firing Tenet, and not firing enough of the top State Dept whizes."

Exactly. Again, IMHO, more fuel to the fire that he's letting his "New Tone" experiment get in the way of his common sense. I think he is a decent man who has a deep respect for loyalty. Washington is a tough to survive for a man with those qualities.

11/11/2005 04:33:00 PM  
Blogger Tony said...

As an upbeat note, here's a story about guys who faced another seemingly immovable force. If you grew up in the big city in America, you accepted the Mafia as a Given. Then along came the FBI.

Search Inside My FBI by Louis Freeh

Far be it from me to suggest that we treat this declared and engaged world war as a criminal investigation, but certain disciplined analytic processes have been proven to work in investigations, against even the most elusive, determined forces.

(Under Louis Freeh, the FBI established legats in ~4 dozen countries.)

Bush's speech today finally opened the door to real dialogue. One hopes the losers and surrenderers come right out and declare their intentions, as abjectly weak they are.

Ps. Read Judge Freeh's "My FBI." The ancient cigarette smuggling routes from Turkey to Euro became heroin routes and now they are terrorism routes, one would expect.

11/11/2005 05:37:00 PM  
Blogger Charles said...

Saddam second in charge dead ^ | 12th November 2005

Posted on 11/11/2005 6:19:14 PM PST by naturalman1975

IZZAT Ibrahim al-Duri, one of Saddam Hussein's top deputies and a man who eluded US capture despite a hefty bounty on his head, reportedly died quietly overnight at the age of 63. The notice of his death came not from the US military, but from a statement signed by the dissolved Baath Party command.

"The leader of the resistance died on Friday November 11 at 2:20 am," according to the statement signed by the Baath command.

There was no immediate confirmation of his death.

11/11/2005 07:27:00 PM  
Blogger hank_F_M said...

This comment has been removed by a blog administrator.

11/11/2005 07:48:00 PM  
Blogger hank_F_M said...

The GWOT torture presents an opportunity that would not appear in a
conventional war. In a conventional war one would capture a 100 or so prisoners
and a reasonable percentage will blab without any pressure. There is no point in
torturing the rest for duplicate information. Officers and technitions with
valuable information are not allowed near the front. In the GWOT because other
means of information are less usable, a single prisoner can be potential source of
major information. Is this a justification for torture?

I would say not.

There are several minor points against the use of torture and I would say a
big one.


It is not very reliable. The subject is inclined to say what will end the
session, i.e. what they think the interrogator expects to hear. The interrogator
quite possibly does not have the means to sort this out. Since it is what the
interrogator expects to hear they will give it little challenge.

Usually the prisoner will talk without torture sooner or later.

It opens our soldiers to retaliation in kind. Even if the
current enemy does not a future one may do so.

It gives a motive to enemy personnel not to surrender, increasing our

Allowing torture and similar activities tends to break down military
discipline. Having allowed it in one case it is much harder to expect orders not
to do similar things in other cases to be obeyed.

If it becomes public it creates a terrific public affairs problem and
invites outside intervention into the running of our armed forces.

The Major Problem.

If we allow torture then we will sink to the level of Osma bin Laden and
his scum. Even when bin Laden loses (which he will in any case) we will lose
even more!


Jon Holdaway writing in Phil Carters that the amendment is another case of

. . . bad cases make bad law, and this is a prime example. Congress' desire to get its arm around the detainee abuse scandals is understandable, but to shift from its oversight role to its lawmaking role in order to fix the problem is not the approach to take. Statutes, by their nature, are like using a chain saw to do brain surgery, especially in an esoteric and complicated area such as interrogations.

The key paragrph of the law states:

(a) IN GENERAL.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

It seems to me that Senator McCains staff did not do much research.

Field manuals are usually cited by number (FM-XX) and date as well as title. So what is being refered to here? Can the Secretary of the Army change the law by amending the Field Manual? I suppose the courts will hold to the version in effect on the date of passage, hoping there aren’t two field manauals that address the issue. In any case it is usually considered good pratice for in items central to a law regulation or such to copy the text into the document rather than include something by referance.

A field manual is technically a recommendation not an order. The manual is written as reccomendations to approachs among legal techniques, not as a list of what is legal or not. Holdaway gives good review of the problems this will cause.

Is this to be part of Title X (Department of Defense) or XVIII (Criminal) of the Federal Code. Following the link back to Wretchards source the orgianal states At the appropriate place, insert the following: Since it does not list sanctions it is probably intended for Title X. If it were part of Title XVIII then any civilian official who violates the action the section would face criminal prosecution. If it is under Title X only military personnel would be subject to this criminal action under Article 92(1) (Disobeying a general order) or Article 134 (Conduct Prejudicial.) I would think that a law of this type should carry sanctions for everyone involved. This will leave the little guys holding the bag for directives that the higher up assured were legal.

The amendment is that it is worded so as not to interfere in normal criminal prosecutions, and to takes define prohibited actions in terms that follow existing case law. Not having either of these would cause intolerable amounts of confusion. But Holdaway points out this could import criminal procedure into POW interrogation procedures. A POW is not normally being interrogated with intent to prosecute; criminal procedure would at best be irrelevant.

I have no use for torture, but laws writen for public relations usually turn out to cause more problems than the solve. This could very well turn out like the “War Powers Act” which actully give the President more authorty of war powers than he previously, the exact oppisite of the authors intent.

11/11/2005 07:56:00 PM  
Blogger Sparks fly said...

Mr.McCain is not a nice person. He exudes the aroma of the Manchurian Candidate. Look at his name. Cain is a name made famous in the Bible: Cain slew his brother Abel.

This bill is trouble. This bill makes mischief at other people's expense. Mr. McCain go away. Make nice and go away. And take your bill with you.


11/11/2005 09:28:00 PM  
Blogger demosophist said...

Look, you guys seem willing to argue that George Bush ought to be taken at his word, regarding his intensions, until there's credible evidence to the contrary. (Which there is not.) I think you have to extend the same courtesy to John McCain. We don't have any idea what his intentions are, and there's simply no reason or utility in presuming the worst. You're being silly in precisely the same way that that the idiotarians are being silly about Bush.

I don't support McCain's amendment for entirely practical and empirical reasons that, I think, most of you understand. I noticed that no one has commented on my "inverse tit for tat" proposal, which limits what we can do to others to what we're willing to do to ourselves, but I submit that some such formula is the only way to untangle the ethical and moral dilemmas involved here. McCains way of dealing with it will not work, and it's probably typical of the ethical knots he'd tie the country in were he to win the Presidency. Not for nothing was he at the bottom of his class at Annapolis. His resolution isn't immoral, it's dumb. And if you don't tackle these moral dilemmas head-on, you're simply handing the opposition the moral high ground. You're presenting them with a free gift.

Clearly things aren't as simple as asking for a volunteer to undergo what we do to a suspected terrorist, but it's at least a good thought experiment to begin to discuss what is a sea-change in the common law traditions of our culture... for except for David Hume's brief discussion of "Hume's Horror" we've never dealt with these issues in any substantive or coherent way.

And forgive me, but the "inverse tit for tat" scenario just has to be the starting point. Elaborate on it, please... if you will. I'd love to hear your thoughts.

11/11/2005 10:09:00 PM  
Blogger sbw said...

Torture has nothing to do with rights. Don't manufacture such a bogus concept.

McCain legislation should be rejected because the proper policy is to choose not to torture. Refuse to torture not because we have to, but because we decide to.

11/13/2005 06:21:00 AM  

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