Pith Helmet

I’ve been watching Anthony Bourdain’s No Reservations religiously since before Christmas, season-passing it on the TiVo, and greenlighting it if necessary. I’ve seen him dine on everything from Ganges corpse-feeding crab to blood-drenched raw seal carved straight off the bone. And, up until now, my only regret was that Bourdain never had the chance to try my Dad’s Opossum and Potatoes (that’s Possum ‘n’ Taters for those of you south of the Masey-Dixie Line). To that list of regrets, I must now add that I’ve never seen Mr. Bourdain reveal the best place in the world to order a plate of crow since, for a moment, I thought that I may have to develop a taste for it.

You see, I was a McCainiac back in 2000. When everyone in the GOP was pulling the primary lever for Dubya, I was voting for McCain. And, this year, although I cast my primary vote for Ron Paul, I was eager to join McCain’s catapult crew as his general election campaign got airborne. Why? Because, in addition to my concern over Mitt Romney’s doing more flip-flopping than John Kerry on a hot iron skillet, John McCain believed that the United States should not engage in torture. He was not afraid of the Jack Bauer Movement within the Republican Party, those chairborne rangers and watercooler SEALs whose opinions on foreign affairs are shaped solely by Tom Clancy novels and 24.

Unlike the CTUnuchs, McCain knew waterboarding firsthand and agreed with experts like Malcolm W. Nance that waterboarding is torture. He argued that the United States needs to abide by the Geneva Conventions and oppose torture.

Then, I heard on my local radio news (not “Talk Radio”) that McCain voted against the Intelligence Authorization Conference Report (H.R. 2082) which would have limited interrogation by civilian intelligence agencies to those techniques delineated in the Army interrogation Field Manual. Those on the Left immediately accused him of flip-flopping. Meanwhile, those on the Right chalked it up to an attempt to reconcile himself with the “the conservative base,” the Rove Warriors who believe that “limited government” is somehow synonymous with “carte blanche to torture.” The old Bart Simpson Damned-If-You-Do-Damned-If-You-Don’t Paradox.

However, the vote was neither cut nor dry.

On February 14, 2008, he defended his vote by pointing out his leadership against torture in earlier measures: the MCA (Military Commissions Act) which preseved “the undiluted protections of Common Article 3 of the Geneva Conventions” and the DTA (Detainee Treatment Act), which applied the Army Field Manual limitations to all Department of Defense interrogators. He stated his opposition to the new legislation was based upon not wishing to limit the CIA to techniques that are “publicly listed.”

He cited his words during the 2006 Senate debate on the passage of the MCA as evidence that he is not engaged in political triangulation: “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.” The DTA, he points out, “permits the CIA to use different techniques than the military employs, but … 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.”

He reiterated his opposition to the Adminstration’s refusal to say that waterboarding illegal under current law, and stated unequivocably “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.

Not exactly the ringing endorsement of Verschärfte Vernehmung that McCain’s opponents, both Left and Right, made it out to be.

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