I am very worried by the various human rights violations conducted in Bush’s war on terror. However, I’m not sure that the McCain Amendment is a good solution. In particular I am worried that a law banning any “cruel, inhuman, or degrading treatment or punishment” will necessarily be ignored or at least bent.

In particular by defining cruel, inhuman or degrading treatment to include any actions which would be precluded by the relevant clauses of the “Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States” it would seem that the McCain amendment guarantees even reasonable conduct will violate the law. Suppose we tell a suspected terrorist that unless he gives us information on the defenses at a terrorist camp we will be forced to attack the stronghold with an ariel bombardment. If without this information we would necessarily use air power to make the attack it would seem unconscionable not to offer the captive the chance to talk with this knowledge but if his wife and children live in the stronghold we would be threatening to kill his family if he did not talk. A treatment which would likely be deemed unconstitutional under US law.

Moreover, this law would either be totally ineffective as it would not block US agents from turning prisoners over to foreign government or it would over broadly require us to never release prisoners for prosecution to many arab regimes. If indeed this act prevents us from turning prisoners over to others who will engage in these sorts of activities it would seem to require us to actively circumvent local law in many areas. For instance if the Saudis turn over a suspected terrorist they caught committing theft to US personal we would be barred from finding him innocent of any terrorist activity and returning him to the Saudis as our constitution would deem their punishment for thievery to be cruel. If we can get around the provisions of this act by never legally taking the person into custody (say letting some eastern european country do the dirty work for us) or by relying on other countries to do the actual torture then the act is just for show. If not how can our interrogation possibly be effective if being in US custody is a strict improvement over the local punishment they face?

Ultimately while torture should be prohibited it seems unworkable to restrict the CIA, an agency we rely on to conduct intelligence operations, surreptitiously kill terrorists, pay off officials and otherwise engage in activities unacceptable at home, to the same standard of treatment required for individuals in US prisons. I think most of us believe in some notion of proportionality for interrogation and that while torture is unacceptable it is okay to apply more pressure to someone whose knowledge might save many American lives in a war zone than it would be to a suspected bank robber in US jail. Despite the fact that this law would require us to treat all prisoners with the same sensitivity we would someone arrested in the US I very much suspect that the CIA and other agencies will continue to use at least slightly more pressure.

Even if you don’t believe the US should use any more pressure overseas than at home the low standard necessary for conduct to be illegal under the McCain bill may actually make things worse. As soon as a CIA interrogator goes just a bit beyond what is acceptable conduct under the US constitution he will likely be legally liable and the threat of jail will prevent him from speaking out about real abuses. Just as drug and prostitution laws in the US can increase tolerance of illicit activity by making people who would otherwise be on the side of the law into criminals I fear this bill will turn CIA interrogations into criminal conspiracies. Once everyone involved is a criminal there won’t be anyone left to complain about torture or murder.

Besides, I think it is unfair to our government operatives to give them such a vague and unclear guideline on what they can and cannot do to detainees. Asking the individual soldier or CIA operative to interpret treaties and court documents is unreasonable. I think a much better solution would be to write a law specifically and exactly describing what is and is not allowable rather than this nice sounding but ultimately dangerous measure.