November 14, 2005 | National Review Online

Say “No” to the McCain Amendment

Long on high-profile piety, short on protecting Americans.

Terrorists do not just flout the laws of war. They turn them into an offensive weapon. When they are not killing civilians, they are hiding among them. When they are not blowing up civilian infrastructure–whether hotels, office buildings, or houses of worship–they are using them as weapons depots, meeting halls, and war rooms.

American soldiers are sitting ducks in an urban guerrilla war. They follow the laws of war. They wear uniforms and carry their weapons openly. Thus the terrorist enemy knows exactly whom to kill. And he kills in stealth. These enemies are not the Nazis. They are not coming at our guys donned in military array, or in tanks festooned with swastikas. They look exactly like the people our troops are trying to protect. They murder by sneaking up close. They murder by improvised explosive devices hidden in soda cans, or bushes, or cars, or on the booby-trapped bodies of the dead.

We don't know who they are or from which way they come. This is not a traditional foe. We can't conquer his territory. He doesn't have one. He's a nomad who trains in secret then sets up shop among innocents only long enough to kill. We can only desperately seek him out. We can only hope to kill or capture him before he uses the honor of true soldiers against them — before he converts to his advantage their moment's hesitation, borne of dedication to a code that war is to be fought between warriors, not by opening fire on non-combatants.

Superior force and discipline are not enough against this adversary. We need intelligence. Intelligence is the single asset that stands between the terrorist and scores — if not more — of slaughtered civilians. Between the terrorist and murdered American military personnel. In the war on terror, as in no war before it, intelligence will be the difference between victory and defeat.

And if Senator John McCain has his way, the most urgently needed intelligence will be lost.

McCain has attached an amendment to next year's defense appropriations bill. It is two parts grandstanding and one part suicide — so, naturally, it has commanded a one-sided (90-9) majority of our grandstanding, suicidal United States Senate, including, dismayingly, over 80 percent of the Republican caucus.

The grandstanding elements are plain enough. First, the whole exercise is a melodramatic condemnation of torture — capitalizing on the Abu Ghraib scandal and isolated instances of prisoner abuse which, while deplorable, are not only infrequent by historical standards but compare favorably to the civilian detention system.

None of it is necessary. Torture is already against the law. It is, moreover, the intentional infliction of severe physical or mental pain — which is to say, much of the prisoner abuse that has prompted the current controversy has not been torture at all. Unpleasant? Yes. Sometimes sadistic and inexplicable? Undoubtedly. But not torture. And where it has been either torture or unjustifiable cruelty, it is being investigated, prosecuted, and severely punished.

Second, the McCain Amendment affects a high-minded prohibition against “cruel, inhuman and degrading treatment.” This, too, is a meaningless gesture — except to the extent it will be perceived by McCain's breathless following in the mainstream media as a political slapdown of the president, the secretary of Defense, and the military brass.

That's because the provision does not change existing law a wit. In 1994, the United States ratified the 1984 United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment (UNCAT).

But wait a minute, you say. Haven't commentators (like yours truly) noted that the Senate approved the treaty with a heavy caveat? Indeed it did. The Senate provided that the treaty was limited by the Fifth, Eighth and Fourteenth Amendments to the Constitution. Although those amendments call for due process and bar both coerced confessions and cruel and unusual punishments, they have largely been limited to judicial proceedings involving criminal defendants. Thus, they are essentially irrelevant to wartime detentions of alien enemy combatants.

So does the McCain Amendment change that? No. It contains exactly the same reservation. In fact, it expressly reiterates the UNCAT caveat and explicitly cites to it, lest there be any confusion. On this, again, it is all show and no substance.

So what's different? That question brings us to the suicide part. McCain wants to turn every enemy combatant into an honorable prisoner of war — at least to the extent that such prisoners are protected under the Geneva Conventions against any type of coercive interrogation.

The McCain Amendment provides that no prisoner held by the Defense Department “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.” That manual expressly forbids any use of force, coercion or intimidation in conducting questioning, even if such tactics fall short of torture, even if the prisoner is a terrorist guilty of war crimes, and even in a matter of life-and-death — perhaps thousands of deaths.

Obviously, in the vast majority of circumstances, this provision of the McCain Amendment is also gratuitous moralizing. In general, though we are at war with terrorists against whom intelligence is our only defense, the military does not resort to forcible methods. To the contrary, gushing respect is our customary response to savagery, complete with halal meals, prayer rugs, and literally white-glove treatment for government-issued Korans (even if the prisoners proceed to use them for stuffing toilets and passing secret messages).

But there are certain circumstances in which high-level al Qaeda operatives are captured in the throes of plotting massive strikes. There are certain circumstances in which such a terrorist might be able to tell us, right now, where bin Laden is, or Zarqawi, Zawahiri, and other leaders who are themselves weapons of mass destruction because they have the wherewithal to command massive strikes.

Understand: If we were to learn where one of those men was, we would attack that target and kill him, and we'd make no apologies for it. By the McCain logic, the killing is fine but the infliction on a terrorist of non-lethal discomfort to obtain the intelligence necessary to do the killing should subject the inflictor to prosecution. That's absurd.

This is not a recommendation that we license torture — although that is a debate adults ought to be able to have without the hysteria and hyperbole that now comes with the territory. This is, instead, a humble appreciation of our limitations. We live in a world of deranged murderers, highly imperfect intelligence, and weapons capable of unimaginable carnage. We are only human beings. We do not have the foresight to predict every peril — in fact, our track record in such prognostication is, at best, checkered. We can certainly hope that we'll never need to use coercive interrogation methods. But we cannot responsibly remove them as an option and claim to be protecting the nation.

We should be asking this question of each and every member of Congress who claims to support the McCain Amendment: If we had credible information regarding an ongoing al Qaeda plot to detonate a nuclear weapon in the continental United States, and we had just taken into custody an al Qaeda militant who was in a position to know where and when the attack was to occur but who was refusing to cooperate, are you saying we would need to let thousands of Americans die rather than harm a hair on the terrorist's head in an effort to extract the information that might save them?

If the answer to that question is “no,” you have no business voting for the McCain Amendment. If the answer is “yes,” you have no business serving in a government whose first obligation is the security of the governed.

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