Mr. McCain's amendment is attached to a malignant measure - introduced by Senator Lindsey Graham, Republican of South Carolina, and now co-sponsored by Senator Carl Levin of Michigan, the top Democrat on the Senate Armed Services Committee - that would do grievous harm to the rule that the government cannot just lock you up without showing cause to a court. This fundamental principle of democratic justice must not be watered down so the Bush administration does not have to answer for the illegal detentions of hundreds of men at Guantánamo Bay and other prison camps.The mention of the legal defense brings up something worth noting: if the Attorney General tells you that what you are doing is legal, what hope have you? Only that the jury later thinks so, too. And if they don't: more fool you.
Mr. Graham's original measure would at least have barred the use of coerced confessions from prisoners like those at Guantánamo. But the current version actually appears to allow coerced evidence. Lawmakers were also discussing language that would strip United States courts, including the Supreme Court, of the power to review detentions. Bruce Ackerman, a professor of law at Yale University, said that Congress had not attacked the courts in this fashion since Reconstruction.
Mr. Bush had barely announced his deal with Mr. McCain before Attorney General Alberto Gonzales made it crystal clear that the administration would define torture any way it liked. He said on CNN that torture meant the intentional infliction of severe physical or mental harm, and repeated the word "severe" twice. He would not even say whether that included "waterboarding" - tormenting a prisoner by making him think he is being drowned.
Then Duncan Hunter, chairman of the House Armed Services Committee, announced that he would oppose the McCain measure unless the White House guaranteed in writing that it would have no effect on intelligence-gathering. Mr. Hunter's legitimate concerns have already been addressed with a provision that would allow C.I.A. agents to defend themselves against torture charges by saying they were following legal orders. That protection is already provided to uniformed soldiers. The latest objections by Mr. Hunter, who has helped Vice President Dick Cheney try to block Mr. McCain's amendment, are just a smokescreen.
So the torture is still accomplished, and you, the poor shmuck in the dungeon or the jail cell, take the rap. Aren't you glad the Congress changed the law now?
The NYT editorial headline says it all: "Ban torture. Period."
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