iOS app Android app More

The Torture Memos: McCain's Tortured Contradictions


This is a post I did not want to write.

For most of his career, John McCain has been an outspoken advocate against torture.  So you would think that Senator McCain would have cheered the White House's decision to release the torture memos.

Unfortunately, you would be wrong (h/t):

McCain says he wishes that the Bush Administration had abided by the Detainee Treatment Act, of which he was the principal sponsor.  He describes waterboarding as "unacceptable" and "torture, period."  He notes that those tortured will tell an interrogator "whatever they want to hear."  He says that it's a great "recruiting tool" for al Qaeda and other terrorist groups.  He says that it doesn't matter whether the Administration got useful intelligence from torture because of the resulting damage to America's reputation around the world.

But he also says that the release of the memos "Helps no one."  He says that it "doesn't help America's image."  He says that their release "does not help address the issue."  He believes that "it was a serious mistake to release these memos."

So on one hand, Senator McCain believes that torture has hurt America's reputation in the world and that it has encouraged our enemies.  On the other, he believes that officially acknowledging torture will hurt America's reputation in the world and that it will encourage our enemies.

I wanted to give Senator McCain the opportunity to clarify his remarks.  I contacted his office, which promptly returned my call.  But despite my repeated efforts to get additional information, his office provided only the following statement, and only on background (meaning that no one was willing to be quoted):


Senator McCain's position has been clear, he led the fight on the detainee treatment act, and this sort of conduct shouldn't have happened in the first place.



That really doesn't answer the question:  Why has Senator McCain chosen to criticize the Obama Administration's decision to release the memos as potentially damaging to U.S. interests when he also argues that torture already has damaged American interests?


To put it another way, how can acknowledging the truth somehow be worse than the truth itself?

Senator McCain's decision to continue to defend the actions of the Bush Administration is especially mystifying given that Administration's past disregard for his opinion. In October 2007, The New York Times obtained two Justice Department memos authorizing waterboarding and other techniques (both of which were among those released by the Obama Administration).  In response, McCain told MSNBC that he was

personally assured by administration officials that at least one of the techniques allegedly used in the past, waterboarding, was prohibited under the new law.

In a January 2008 statement, McCain said something similar.  It is worth quoting at length:
Throughout these debates, I have said that it was not my intent to eliminate the CIA interrogation program, but rather to ensure that the techniques it employs are humane and do not include such extreme techniques as waterboarding. I said on the Senate floor during the debate over the Military Commissions Act, "Let me state this flatly: it was never our purpose to prevent the CIA from detaining and interrogating terrorists. On the contrary, it is important to the war on terror that the CIA have the ability to do so. At the same time, the CIA's interrogation program has to abide by the rules, including the standards of the Detainee Treatment Act." This remains my view today.


When, in 2005, the Congress voted to apply the Field Manual to the Department of Defense, it deliberately excluded the CIA. The Field Manual, a public document written for military use, is not always directly translatable to use by intelligence officers. In view of this, the legislation allowed the CIA to retain the capacity to employ alternative interrogation techniques. I'd emphasize that the DTA permits the CIA to use different techniques than the military employs, but that it is not intended to permit the CIA to use unduly coercive techniques - indeed, the same act prohibits the use of any cruel, inhumane, or degrading treatment. . . .

This necessarily brings us to the question of waterboarding. Administration officials have stated in recent days that this technique is no longer in use, but they have declined to say that it is illegal under current law. I believe that it is clearly illegal and that we should publicly recognize this fact. In assessing the legality of waterboarding, the Administration has chosen to apply a "shocks the conscience" analysis to its interpretation of the DTA. I stated during the passage of that law that a fair reading of the prohibition on cruel, inhumane, and degrading treatment outlaws waterboarding and other extreme techniques. It is, or should be, beyond dispute that waterboarding "shocks the conscience."

It is also incontestable that waterboarding is outlawed by the Military Commissions Act, and it was the clear intent of Congress to prohibit the practice. The MCA enumerates grave breaches of Common Article 3 of the Geneva Conventions that constitute offenses under the War Crimes Act. Among these is an explicit prohibition on acts that inflict "serious and non-transitory mental harm," which the MCA states "need not be prolonged." Staging a mock execution by inducing the misperception of drowning is a clear violation of this standard. Indeed, during the negotiations, we were personally assured by Administration officials that this language, which applies to all agencies of the U.S. Government, prohibited waterboarding.

It is unfortunate that the reluctance of officials to stand by this straightforward conclusion has produced in the Congress such frustration that we are today debating whether to apply a military field manual to non-military intelligence activities. It would be far better, I believe, for the Administration to state forthrightly what is clear in current law - that anyone who engages in waterboarding, on behalf of any U.S. government agency, puts himself at risk of criminal prosecution and civil liability.


If we are to believe Senator McCain, Bush Administration officials looked him in the eye.  The first time, in October 2007, they told him that such practices had stopped.  The second time, in early 2008, they told him specifically that they no longer waterboarded -- but continued to regard such practices as legal.


Let's not beat around the bush here.  On at least two occasions, the Bush Administration flat-out lied to Senator McCain. They told him they weren't doing what they were doing.  And he not only believed them, he publicly defended them.

What makes this even odder is that in April 2008, McCain acknowledged to Time magazine's Michael Scherer that that he did not know the details of the Bush Administration's policies "any more than is available to non-members of the Intelligence Committee."  That means that when he was accepting the Bush Administration's assurances, he had no idea what they were doing.

I don't know whether Senator McCain is angry about this. I would hope so.  But given his only public statement (and his office's subsequent unwillingness to answer my questions), we have no way of knowing.

In the past, critics of the Senator have suggested that his willingness to accept the Bush Administration's promises was a product of his ambitions -- that he was willing to set aside his principled opposition to torture in order to become President.

But that theory doesn't explain why Senator McCain continues to defend the Administration now that he no longer is a candidate.

Let me repeat my question.  Why does Senator McCain now believe that acknowledging the facts is somehow more damaging than the facts themselves?

One possible answer is that this is not about the torture memos.

Senator McCain does not want to acknowledge that he was duped.  He does not want to credit the Obama Administration for achieving what he could not -- an end to the Bush Administration's torture regime.  He does not want to admit that he could not prevent our (and his) worst fears from becoming a harsh reality.

I sincerely hope that there is another answer, one that will end the contradiction between John McCain the anti-torture champion and John McCain the Bush Administration apologist.  But until we hear more than platitudes and apologies from the Senator himself, we will have to assume the worst.

Follow Charles J. Brown on Twitter: www.twitter.com/undiplomatic