Understanding the Bush-McCain "Compassionate Torture" Proposal

09/25/2006 05:13 pm ET | Updated May 25, 2011

You need not be a legal scholar to understand the Bush-McCain torture compromise, as the issue and why it is wrong can be reduced to four very basic points.

It's All About Politics.
The President's current hard line position -- that the fate of the CIA interrogation program is in jeopardy since current law is too vague -- was not derived from any legal treatise but from Karl Rove's campaign playbook and the proposal is more about defining the debate for the midterm election than about clarifying the Geneva Conventions.

This is a replay of the 2002 debate over the creation of the Homeland Security Department. Months before the election Bush dropped his opposition to the proposal and immediately adopted another hard line position - threatening to veto any bill failing to strip many union and civil service protections for department employees. Bush's position created an impasse with Democrats which he used to define and attack them as being "more interested in special interests in Washington and not interested in the security of the American people." The President's current position relies on the same politics of "fear and smear" to reduce the debate to a false argument that the Democrats are more concerned about protecting terrorists than the American people.

The Newly Vague Geneva Convention.
Under the 1949 Geneva Convention prisoners may not be subject to cruel, inhuman, humiliating or degrading treatment or punishment and violations may be prosecuted under the federal War Crimes Act. President Bush now contends that this language is "so vague that it's impossible" to continue the CIA interrogation program.

This language was not vague in March when the State Department released its annual human rights report condemning countries such as North Korea and Syria for "acts of torture and other cruel, inhuman or degrading treatment" that included water-boarding and other "aggressive" techniques used by the Bush administration; nor was it vague last December when President Bush clearly stated that it was against U.S. policy to use "cruel, inhuman or degrading treatment". More significantly, it was not vague when Allied war crimes tribunals convicted Japanese soldiers and their superiors for engaging in or approving water-boarding.

The Bush-McCain "compassionate torture" proposal narrows the scope of the War Crimes Act to only acts intended to cause severe or serious suffering, thereby allowing many practices currently prohibited while also covering the administration's hide by applying this standard retroactively to prevent prosecution and/or impeachment for past abuses at Abu Ghraib and Guantanamo. While the compromise adopts McCain's language prohibiting violations of the Geneva Convention, the prohibition is diluted by being subject to interpretation by the president and removing liability under the War Crimes Act.

Torture Is Not Effective.
Underlying this whole debate is the unspoken and false premise that the use of torture is an effective interrogation technique. "It has always been recognized that . . . interrogating men, by putting them to torture, produces nothing worthwhile." This was the conclusion of Napoleon Bonaparte in 1798 and is shared by the U.S. Army Field Manual. The manual also warns that "[r]evelations of use of torture by US personnel will bring discredit upon the US and its armed forces while undermining . . . support for the war effort" and placing American prisoners "at a greater risk of abuse." This is especially true in the current conflict, as a recent Army War College report explained that torture is always "a major strategic blunder . . . [especially] in counterterrorism and counterinsurgency warfare [where] the moral component of the fight is strategically decisive."

This Issue Is Nothing New.
President Bush wants Americans to believe that no other President has waged war against evil regimes or confronted this issue before. The reality is, however, that in each of the greatest challenges of American history, our leaders have chosen to follow the course of the founding fathers who believed that they had to beat the British in a manner consistent with the values and principles of their cause despite atrocities committed by British troops. That is why Washington directed his troops to "[t]reat [British prisoners] with humanity," why Lincoln instituted a written code of conduct for the Union Army prohibiting "the intentional infliction of any suffering, or disgrace" and why we have followed these same standards in every war prior to the current conflict.

In initially opposing the Bush proposal, Senator McCain eloquently explained that this issue "has nothing to do with al Qaeda, [but] it has everything to do with America." For this McCain won praise for his political courage and condemnation from Bush apologists. The Bush-McCain compromise, in contrast, has absolutely nothing to do with American values but it has everything to do with upcoming elections and the triumph of political expediency over political courage.