I'll be the 1st to praise Bush on this:

[JohnnyBz00LS]

Posted on Fri, Dec. 16, 2005

Bush backs prisoner torture banMove comes day after House endorses McCain bill

By Josh White
Washington Post

WASHINGTON – President Bush on Thursday reversed position and endorsed a ban on torture crafted by Sen. John McCain, R-Ariz., after months of White House attempts to weaken the measure which would prohibit the “cruel, inhuman, or degrading” treatment of any detainee in U.S. custody anywhere in the world.

The announcement of a deal at the White House was a setback for the administration, which had pushed the senator to either drop the measure or modify it so that interrogators, especially with the CIA, would have the flexibility to use a range of extreme tactics on terrorism suspects. In the end, McCain, bolstered by strong support in both houses of Congress, was willing to add only two paragraphs that would give civilian interrogators legal protections that are already afforded to military interrogators.
That language would allow those civilians to defend their use of interrogation tactics by arguing in court that a “person of ordinary sense and understanding would not know the practices were unlawful.” Legal experts said that provision carries an implicit responsibility: Should CIA operatives or other civilians believe they were being directed to use an interrogation technique that was illegal, they would be obligated to disobey the order.

Such details aside, the debate over the amendment was viewed by many on Capitol Hill as a question of taking a broad stand for or against torture after international condemnations of the alleged abuse at Iraq’s Abu Ghraib prison and other U.S.-controlled sites.

Bush gave his support at a news conference in the Oval Office on Thursday, one day after the House gave veto-proof support for McCain’s language in a symbolic 308-122 vote.
The Senate had already approved the provision by a 90-9 vote.

Bush praised McCain’s effort.
“We’ve been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be home or abroad,” Bush said.
Though the White House on Thursday held the agreement out as a compromise, McCain retained the language he had been proposing all along, which prohibits abuse of any detainee in U.S. custody and makes it a legal requirement that Defense Department interrogators abide by rules in the Army’s field manual on interrogations.

“We’ve sent a message to the world that the United States is not like the terrorists,” McCain said at the White House, sitting next to Bush. “We are … a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are. And I think that this will help us enormously in winning the war for the hearts and minds of people throughout the world.”
McCain’s provision is included in the defense appropriations bill and defense authorization bill, both of which Congress hopes to adopt by year’s end.

Bush had previously threatened to veto the bills, and Rep. Duncan Hunter, R-Calif., chairman of the House Armed Services Committee, on Thursday threatened to block the legislation unless he receives written assurances from the White House that it won’t handcuff intelligence officials.
Human rights groups applauded the agreement.

“We’ve come a long way as a country since 9/11, and this development is a sign of that,” said Tom Malinowski, Washington advocacy director for Human Rights Watch. “We’ve gone from a sense of anything goes to a recognition that torture hurts America even more than it hurts the enemy.”
Malinowski and others warned that a separate proposed amendment by Sen. Lindsey Graham, R-S.C., could eliminate certain rights for detainees held at the U.S. detention facility in Guantanamo Bay, Cuba.
In a new draft of the amendment, the U.S. government would be allowed to indefinitely detain people in Guantanamo based on evidence obtained through “coercion.”

Some lawyers for prisoners say they believe the White House is still trying to protect its ability to use techniques that they believe amount to torture, and that the administration has shifted that fight to Graham’s amendment.

Tom Wilner, a lawyer who represents a group of Kuwaiti detainees at Guantanamo, said the new Graham language would make the U.S. military prison in Cuba a place where the McCain-backed prohibitions against torture were essentially unenforceable. The amendment, he said, could give U.S. troops an incentive to engage in coercive interrogations of detainees, without fear of being held liable. The provision also would strip detainees’ access to U.S. courts.

“This is a tremendous reversal of U.S. law,” Wilner said. “I think this language being enacted will more than erase anything good that comes out of McCain.”

Meanwhile, an unidentified Republican senator has used Senate rules to hold up approval of the Intelligence Authorization Bill, objecting to language that would require the administration to give Congress regular reports on detainees held in secret CIA detention facilities abroad, officials said.
The facilities, known in classified documents as “black sites,” have stirred international debate.
Congressional aides said the language had been accepted by Sen. Pat Roberts, R-Kan., chairman of the intelligence committee.

“Yesterday, however, we were told there were Republican objections and the bill would not come up unless the amendments were removed,” a staff aide said.

 

[fossten]

Nice to know you support the "Al Qaeda Bill of Rights." Shows where you stand. Bush had no choice but to agree to sign the bill or the troops in Iraq get no food or water. McCain railroaded him into signing it.


December 15, 2005, 2:21 p.m.
McCain & Miranda
“Cruel, inhuman and degrading” may prove more dangerous than meets the eye.



Senator John McCain’s confusing and vague amendment, calling for a government-wide ban on coercive interrogation, appears to be a done deal. But President Bush should really bear the political heat and veto it. The longer one wrestles with it, the more the McCain amendment forebodes a national-security catastrophe. The legislation should be scrapped altogether, or, at the very least, drastically amended to replace its Bill of Rights references — at once lazy and perilous — with a careful, honest effort to grapple with the propriety of specific interrogation methods.

Absent that, al Qaeda terrorists captured in battle by members of our armed forces — the American soldiers they are trying to kill — would not only be protected from rough interrogation. They may very well have to be given Miranda warnings as well as free lawyers — underwritten by the Americans they are trying to kill.

Cynically tacked on to the 2006 defense appropriations bill (and thus holding hostage provisions for our troops in wartime), McCain’s amendment was approved by a 90-9 Senate vote on October 5, and a margin of 308-122 in the House on Wednesday. The landslides might well have gone the other way if adequate thought had been given to the (presumably unintended) consequences of the measure’s terms.

The more obviously problematic portion is Section 1, which applies only to the military and requires adherence to the Army Field Manual. The manual is currently being revised, which, as the New York Times reported on Wednesday, complicates the tense negotiations over the amendment. As it stands now, however, all coercive questioning by the armed services would be barred.

Basically, under Section 1, al Qaeda terrorists, despite having no rights under the pertinent Geneva Convention, would be rewarded with deferential treatment similar to that given honorable prisoners of war. They would be protected not only from torture (which is already illegal) but also from “cruel treatment” and affronts to “personal dignity” that might be regarded as “humiliating” or “degrading.”

This is unwise, but it pales in comparison to the less apparent disaster that the amendment’s second prong could be. Section 2 would not merely coddle al Qaeda and deprive the United States of life-saving intelligence. It is, potentially, an unfathomable windfall for the terror network.


DOES “CRUEL, INHUMAN, AND DEGRADING” APPLY?
Section 2 is not limited to the military. It purports to prohibit all American government officials, regardless of where in the world they serve (i.e., even if they are, say, covert CIA agents operating overseas), from employing “cruel, inhuman, or degrading treatment or punishment.” I say “purports” because the section’s terms are confusing and internally contradictory.

McCain borrows the term cruel, inhuman, or degrading treatment or punishment (CID) from the 1984 United Nations Convention Against Torture and Cruel, Inhuman, and Degrading Treatment or Punishment (UNCAT). When the Senate ratified UNCAT in 1994, it enacted a significant reservation: the CID terms were limited to what was already covered under U.S. law by three Bill of Rights provisions: the Fifth, Eighth and Fourteenth amendments to the Constitution.

As I’ve argued, here, this caveat reduced CID to a virtual nullity. The Bill of Rights does not apply to non-Americans situated outside U.S. territory. Under current law, UNCAT’s CID terms are thus unavailing to alien enemy combatants captured and held in foreign countries during wartime. Such captives may not be tortured, but CID poses no legal obstacle to aggressive tactics that fall short of torture. Tactics that yield intelligence which saves the lives of American citizens and soldiers.

On first blush, the McCain amendment appears to preserve this UNCAT limitation. The last subparagraph of Section 2 reads as follows:

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.

This language reiterates and relies on the very UNCAT caveat that made CID irrelevant. If that’s how it were interpreted, the McCain amendment’s second section would not work any real change in American law. It would be a powerful symbolic stand against abusive interrogation, but in reality impotent because CID is circumscribed by three constitutional amendments that have no application overseas. I argued this point — too hopefully, I fear — in this recent article.

On reflection, that hopefulness gives insufficient attention to another brief subparagraph of Section 2, which McCain titles “CONSTRUCTION.” It reads: “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.” (Emphasis added.)

This is extremely confusing. It suggests that no force is to be given to the geographical limitations of the constitutional amendments relied on by McCain (and in UNCAT) to define “cruel, inhuman, and degrading treatment.” But those limitations are defining aspects of those amendments.


THE AL QAEDA BILL OF RIGHTS
We would not venerate the Bill of Rights, and the Supreme Court would not have given it such vibrant effect, were it not for the fact that it reflects the privileges and immunities of Americans — the attributes of membership in the body politic that created our government.

Remember, constitutional rights are guarantees against our government. They are not rights we would ever have extended to the whole world. The world, after all, contains enemies who would destroy our rights. The very purpose of forming government was to secure those rights from such enemies. It is impossible to separate the substance of the Fifth, Eighth and Fourteenth Amendment protections from the fact that those protections are designed to benefit only people who have joined the fabric of our society. Their content would be very different indeed had they been intended to serve others, especially our enemies.

What’s more, if Senator McCain did not intend the constitutional amendments to apply fully (meaning, with their implicit limitations), what was the point of including them in his bill? It doesn’t make much sense … other than to relieve him of the burden he has avoided at all costs — namely, the burden to specify exactly what types of tactics he believes are “cruel, inhuman, and degrading.” The burden to define forthrightly what he thinks we should and should not be able to do.

Fifth Amendment “due process,” for example, simply means what it literally says: the process that is due. That always depends on the circumstances — which are starkly different between placid domestic policing and the life-and-death of war-fighting, half-a-world away. The purpose of law is to instruct. But writing a law like McCain’s, which essentially says an interrogee is entitled to the process that is due in a war zone, does precious little to instruct an interrogator as to what he is and is not allowed to do.


“YOU HAVE THE RIGHT TO REMAIN SILENT …”
But let’s play it out. Let’s assume the “CONSTRUCTION” subparagraph controls. Could that possibly be what Senator McCain intends? That the substantive protections of these Bill of Rights provisions extend globally to all al Qaeda terrorists?

It would mean, for example, that an al Qaeda terrorist in the custody of our armed forces in Afghanistan would have more rights than a nonviolent illegal alien detained in Texas after being caught trying to sneak across the border. The latter has no due-process rights under American law because he hasn’t succeeded in entering our country.

But things could actually get much stranger, and worse, than that. The Fifth Amendment — made part of the definition of “cruel, inhuman, and degrading” by McCain, contains the privilege against self-incrimination. It used to be that this privilege simply meant freedom from being forced to speak against your will — which at least has the resonance of torture and other forms of obvious coercion.

But it has become so much more than that. In its 2000 decision in Dickerson v. United States, the Supreme Court broke with over 30 years of jurisprudence and held that the rights it first devised in the famous 1966 Miranda case are not just judge-made prophylactic rules designed to protect the separate constitutional right against self-incrimination. The Dickerson Court elevated Miranda to constitutional status. “Miranda rights” are now considered part and parcel of the core Fifth Amendment guarantee itself.

Failing to provide Miranda rights is no longer just a mere “Miranda violation” — the upshot of which was the suppression of a confession not because the Constitution required it but based on a policy choice to promote good police behavior. Failing to provide Miranda rights is now considered a full-fledged violation of the Constitution — of the Fifth Amendment itself. As a matter of law, no Miranda warnings now means a person in custody is constructively considered to have been coerced — no matter how well he has been treated, no matter how much his physical comfort has been respected, and no matter that he may already have known his rights based on prior arrests.

How does all that play into the McCain amendment? As we’ve seen, its Section 2 would forbid the “cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth … Amendment[.]” (Emphasis added.) Now, the lack of Miranda warnings may not strike you as particularly cruel or inhumane (it is unquestionably unusual for a person in custody). But when it comes to such matters, it really doesn’t matter what you, or I, or even Senator McCain think. The Supreme Court, which authoritatively decides what constitutional provisions mean, has already decided that the lack of Miranda warnings renders interrogation unconstitutionally coercive in violation of the Fifth Amendment.

As a result, failing to provide Miranda rights is sure to be found by many federal judges to be a form of lawless coercive interrogation that fits within McCain’s prohibition against cruel, unusual, and inhumane treatment. This is especially so given that judges frequently resort to legislative history in construing vague, confusing, inexact statutory terms. Anyone reading the Congressional Record here will find that the whole purpose behind the McCain amendment was to make coercive interrogation illegal.

If that is the case, then al Qaeda terrorists captured on overseas battlefields in the war on terror would have to be given Miranda rights before they could be interrogated. Forget about water-boarding. They would actually have to be advised that they are under no obligation to speak to interrogators, that if they do speak their statements can be used against them as evidence in court, and that they are entitled to have a lawyer — paid for by the American people — present and assisting them at all times during questioning.

We would also theoretically have to provide such lawyers on request — lawyers who, naturally, would counsel their terrorist clients not to tell our government anything.


TOO FANTASTIC? NO, IT’S ALREADY HAPPENED
“Wait just a minute,” you say. “You’re being an alarmist. Miranda rights for terrorists captured on the battlefield? It’s too fantastic — no one will ever say the law requires that.” Well think again, because it has already happened.

In late 2000 — in the flighty days before 9/11 made us think more soberly about our security — a federal judge initially suppressed the confession of Mohamed Al-`Owhali, who had blown up the U.S. embassy in Nairobi, killing over 200 innocent people. Al-`Owhali, a Saudi, had no American constitutional rights. He had been in the custody of Kenya, which does not provide Miranda protections. If the FBI agents who were allowed to question him had advised him of the standard Miranda rights, they’d have been lying to him.

No matter. The judge decided it was as if American agents carried the Fifth Amendment around with them wherever in the world they went. He thus reasoned that the failure to give Miranda warnings, in Kenya, meant the confession — on which the whole case depended — had to be suppressed.

Eventually, the judge reconsidered and permitted the confession to be introduced at the trial (at which al-`Owhali was convicted). The judge was able to do that because he had some legal flexibility. At the time, dubious at best was his premise that the Fifth Amendment actually applied to a Saudi in the custody of Kenya whose only connection to the U.S. was to bomb our embassy.

It will not be a dubious premise anymore if the McCain amendment becomes law. Al Qaeda, which shouldn’t even get Geneva Convention protections, will now be cloaked in the majesty of our Bill of Rights. Who knows how far that will be stretched over time as the federal courts, thanks to the Supreme Court’s shattering 2004 Rasul decision, begin considering hundreds of challenges by enemy combatants to their wartime detention.

The McCain amendment may have started as a well-intentioned effort to minimize torture. As written, however, it has all the makings of a debacle. A debacle that will vest our enemies with the fundamental rights of Americans, while Americans themselves are gravely imperiled.

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

 

[MonsterMark]

Yep. Another victory for the appeasers and the terrorists.

 

[JohnnyBz00LS]

Nice to know you'll consistantly take the low road, regardless of who paved it or who else is traveling on it.

 

[TheDude]

Amazing how Bush say's something decent like......

(GWB)
“We’ve been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be home or abroad,”

........and all you can do is spit on it, talk about being negative.

 

[fossten]

Amazing how Bush say's something decent like......

(GWB)
“We’ve been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be home or abroad,”

........and all you can do is spit on it, talk about being negative.

Hey, you're the one always accusing me of accepting everything Bush says as gospel and that he can never make a mistake as far as I'm concerned. Now I have a problem with one of his decisions, and I'm BEING NEGATIVE? How hypocritical is that?

I guess there's no way I can win with you. I'm wrong no matter what I say. Thanks for clarifying that. Now I know that there's no point in trying to agree with you, since you'll always find a way to say that I'm wrong. Obviously I can't give a crap what you think, or I'd slit my own throat. Guess I'll keep being intellectually honest, no matter how intellectually dishonest you Fiberals get.

 

[TheDude]

Hey, you're the one always accusing me of accepting everything Bush says as gospel and that he can never make a mistake as far as I'm concerned. Now I have a problem with one of his decisions, and I'm BEING NEGATIVE? How hypocritical is that?

I guess there's no way I can win with you. I'm wrong no matter what I say. Thanks for clarifying that. Now I know that there's no point in trying to agree with you, since you'll always find a way to say that I'm wrong. Obviously I can't give a crap what you think, or I'd slit my own throat. Guess I'll keep being intellectually honest, no matter how intellectually dishonest you Fiberals get.

Think whatever you like, but if you have an issue with him saying "....make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be home or abroad." Then I think you have some serious hate/anger issues you need to deal with. The guy is saying America will not stoop to barbarism, what in the world could you have against that?

 

[fossten]

Think whatever you like, but if you have an issue with him saying "....make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be home or abroad." Then I think you have some serious hate/anger issues you need to deal with. The guy is saying America will not stoop to barbarism, what in the world could you have against that?

You OBVIOUSLY DIDN'T READ THE ARTICLE I POSTED. Nice try.

 

[97silverlsc]

Bush Gesture to McCain: Less than Meets the Eye
By Ray McGovern
t r u t h o u t | Perspective

Friday 16 December 2005

In deciding not to follow through on his threat to veto Sen. John McCain’s amendment against torture, Bush actually surrendered very little. Torture is still in the eyes of the beholders in the defense and intelligence communities.

The unseemly spectacle of Vice President Dick Cheney and President George W. Bush openly opposing the McCain amendment banning torture for a torturous five months has done irreparable harm to America’s standing abroad. The damage will not be attenuated by the president’s reluctant acquiescence to the McCain amendment yesterday. The most that can be said is that the harm would have been still greater if McCain caved in to Cheney’s incredibly obtuse opposition, or if Bush had to veto must-pass defense legislation in order to defeat the amendment.

The Bush-McCain compromise changes very little. The interrogation practices banned are limited to those not authorized by the United States Army Field Manual on Intelligence Interrogation, which can be - is being - revised. The New York Times reported on Wednesday that the Army has approved a 10-page secret addendum to the Army field manual, a move that one Pentagon official described as “a stick in McCain’s eye.” McCain’s chief of staff minced no words in describing the move as “politically obtuse” and undertaken without “one molecule of political due diligence.”

The new manual, to be issued this month, spells out authorized interrogation techniques, but these remain classified. Having faced down Cheney, it will be interesting to see if McCain’s courage extends to facing down Defense Secretary Rumsfeld’s transparent attempt to vitiate the amendment. Or will McCain and his congressional colleagues settle for a Potemkin-village-type victory, and leave the field for the clever lawyers around Cheney and Rumsfeld. The pleasant noises that McCain was making yesterday and premature comments of eager-to-please Jane Harmon, vice-chair of the House Intelligence Committee, suggest that, in the end, most legislators will settle for Potemkin.

The Crooks and the Crux

One Army officer involved bemoaned the fact that confusion persists because of lack of clarity on what constitutes torture. “‘Cruel, inhuman, and degrading treatment’ is at the crux of the problem,” he said, “but we’ve never defined that.”

The section of the McCain amendment applying to CIA and other civilian interrogators also hinges on what qualifies as cruel, inhuman and degrading treatment, but the amendment’s attempt to define it by referring to provisions in the US Constitution and the UN convention against torture leaves ample room for ambiguity and wide interpretation.

Attorney General Alberto Gonzales said yesterday that the dispute between the White House and McCain was over “what constitutes cruel, inhumane, and degrading treatment” and used the rhetorical device of reductio ad absurdam, pointing out, “In some countries ... those words mean you can’t even insult someone when you question them.” Appearing on CNN, Gonzales added:

“Congress has defined what torture is, and it is intentional infliction of severe - I emphasize the word severe - intentional infliction of severe physical or mental pain or suffering.”

Gonzales would not say whether this definition would include waterboarding. Those watching CNN will not have much reason to believe that anything has changed.

National Security Adviser Stephen Hadley said yesterday that his negotiations with McCain centered on providing legal protection for interrogators. McCain had said earlier that granting such protection would undermine his amendment, but under the compromise with the White House, CIA officers and other civilians accused of abuse in interrogation would be able to argue that they believed they were obeying a legal order and would have the right to government counsel. In practice, this will make it very difficult to hold anyone accountable in US courts. A prosecutor would have to prove that a higher-up’s orders were so unreasonable that they fit the category of Nazi atrocities.

No effort has been made to disguise what lies behind the administration’s position. Even Republican Sen. Lindsey Graham, a lawyer who has been considered a moderate on the issue of torture, has conceded that the “problem” is to find a way to protect interrogators who go too far. Perhaps it is my lack of legal training, but I do not think one can square this circle. There remains too much of a disconnect, for example, between the “we-do-not-torture” rhetoric and, for example, Gonzales’s refusal to rule out waterboarding.

Other Fallout

* Dick Cheney, dubbed “Vice President for Torture” by the New York Times has been dealt a resolute rebuff. His open advocacy of torture, coming on the heels of the indictment of his chief of staff, has put a huge chink in his armor. Today’s revelations that he played a key role in the latest scandal, the use of the National Security Agency for warrant-less eavesdropping on US citizens, could be strike three. Despite the president’s protestations that the two have never been closer, Bush may soon be forced to put a considerable distance between himself and his éminence grise.

* The imperial presidency has been struck a blow - not fatal yet, but nonetheless damaging. Congress has summoned the courage to face Cheney and the president down, at least overtly, and that chips away at the image of invulnerability carefully cultivated by the administration. Congress people and Senators seem newly aware that their oath is to the Constitution, not the White House, and this can spell big trouble in the months ahead.

* The press is beginning to act like a responsible fourth estate. True, the New York Times sat on the NSA story for a whole year, but it was published before the final vote on the so-called Patriot Act - perhaps even in time to have some impact.

* After two years of intimidation by what happened to Ambassador Joseph Wilson and his wife Valerie, patriots within the national security establishment are showing a new willingness to reveal abuses to the press. “According to current and former intelligence officials” has become familiar attribution in major stories that blow the whistle on abuses and deceit.

* The George W. Bush White House is no longer the well-honed machine it once was. Clearly, Karl Rove and Dick Cheney are preoccupied with their legal problems, and the gaping hole left by their lack of timely advice has left the president to his own devices. His failure to do the smart thing last summer and meet with Cindy Sheehan, his identification with Cheney’s doomed stance on torture, his recent off-the-cuff appraisal of Iraqi casualties, his gratuitous remark that Donald Rumsfeld is doing “a heck of a job” (like the late Michael Brown of FEMA?) - all attest to a lack of adult supervision these days at the White House. And as Libby goes to trial, and if Karl Rove is indicted, things are likely to get still more dicey.