McCain's Nod and Wink

Sen. John McCain’s plan to ban torture—which is already banned—is rightly slashed by Andrew McCarthy. McCarthy says McCain’s plan is perverse and wrongheaded, and that’s how I see it too. The plain fact is that banning torture won’t make the terrorists any less vicious and it won’t make Europe any more understanding. It won’t make the war easier to win and it won’t make America any safer. It only complicates the war further, which is something we do not need.

But something in McCarthy’s article got me to thinking a bit about why McCain in particular would want to push such a plan now. He’s thinking about running for president in 2008. He surely knows that most Americans favor treating captured terrorists with something less than Geneva Conventions standards, for the simple reason that the terrorists don’t qualify for Geneva treatment because they don’t fight for a nation, in a regular military, in uniform with insignia, and they do attack civilians as part of their strategy. Granting terrorists fully Geneva status renders the Conventions useless. That’s where most Americans are, and as the captured terrorist’s knowledge of specific attack plans increases, our tolerance for roughly treating that terrorist to extract useful information from him increases as well. That’s common sense in action. So why is McCain staking out this strange territory of his now? Here’s McCarthy on the ticking timebomb scenario:

Yes, [McCain] admits, “if we capture a terrorist who we have sound reasons to believe possesses specific knowledge of an imminent terrorist attack … an interrogator might well try extreme measures to extract information that could save lives.”

But why, Senator? You just got done telling us such information would be inherently unreliable — aside from its method of extraction somehow causing our own soldiers to be tortured by the same countries that foreswore such abuse when they solemnly signed the Geneva Conventions. Why is it that we “might well” try some rough stuff?

Naturally, we might well do it because it might well work, with the result that we might well be spared thousands of slaughtered innocents.

So what’s McCain’s answer to the ticking-bomb dilemma? It is: Let’s make such “extreme measures” illegal, but in the full expectation that the law would be broken with impunity. As he puts it: “Should [an interrogator engage in coercion,] and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted.” They would opt, in other words, not to prosecute.

This is the same rabbit Yale Law School Dean Harold Koh pulled out of his hat when he couldn’t answer the ticking-bomb problem at Attorney General Alberto Gonzales’s confirmation hearings. It is sleight-of-hand — ducking the hard question in a way that is sure to cause more, rather than less, torture.

On one hand, it conveys the nod-and-a-wink message that the law is not serious: If the circumstances seem grim enough, go ahead and abuse the captive and we’re likely to look the other way. It announces that the president, because he wields ultimate prosecutorial authority, is effectively above the law — precisely the notion Congress is supposed to be defeating when it enacts behavioral standards for executive-branch agencies.

On the other hand, it is craven. It leaves the decision whether to violate a foolish proscription that cannot be justified in a crisis to the judgment of a lowly, young interrogator. “Our lives are in your hands, son, so do what you think is right — and, if things work out well, maybe, just maybe, we’ll let you slide” — at least if you’re lucky enough to have your actions come to light on that rare day when we’re feeling feisty enough to face down Amnesty International, Human Rights Watch, the ACLU, the New York Times and that pesky Arab Street.

That last paragraph is the key. By banning torture and torture-light openly yet allowing it with a wink and a nod in dire circumstances, McCain is pushing responsibility down, out of the elected parts of the government and into the bureaucracy. It will be junior and mid-level investigators who make the call, not chief executives. Because they make the call, they get the consequences—well, they’ll get the negative consequences.

If, say, the junior investigator decides against using harsh interrogation to get a terrorist’s ticking bomb information, and the bomb goes off, the elected politicians can blame the investigator for not being tough enough. “It wasn’t my call,” the politician can plausibly say.

If, on the other hand, the junior investigator does use extreme measures but gets no useful information (which is bound to happen in some small number of cases), when the terrorist’s advocates in the ACLU make the case public, the elected politician can again say “It wasn’t my call. Torture is illegal—don’t you know that I proposed banning it myself?” And thus, he’s off the hook if things go wrong either way.

In the one way in which things can go right—the junior investigator uses extreme measures, extracts information which leads to preventing the ticking bomb from going off, you can be sure that the politician will be right there to take the credit. The junior investigator, meanwhile, has to worry that some bureaucrat in Internal Affairs or elsewhere in the chain of command decides that even if the decision to go extreme prevented a massacre of Americans, it doesn’t matter. His actions were still illegal. The junior investigator whose actions saved lives could well still face a career-limiting scandal and even criminal justice. And the politician may well let it happen, just to show that he really in his heart doesn’t favor torture even if it saves lives. We have allowed US military to be disciplined for burning the bodies of killed Taliban in Afghanistan, because the burning offended Muslims. It didn’t matter that the presence of the bodies posed a sanitation problem, or that the US troops didn’t know that their actions might offend Muslims. Our country disciplined them anyway, just to show how nice we are.

McCain’s drive to ban torture now, as he prepares to run for the White House, may be the most brazenly cynical maneuver ever made by a politician in American history. Should President McCain ever have to deal with the horrible scenario of the captured terrorist and the ticking timebomb, the very law he passed insulates him from direct responsibility for any action taken, but puts him in the path of whatever credit is to be received. He will have ensured his own immunity, while risking the careers of his hard working career investigators, and while also risking thousands of American lives.