New York Times editorial: How the McCain anti-torture amendment was watered down.
The New York Times editorial page explained how the McCain anti-torture bill was watered down in addition to what had been reported yesterday. It's not like John McCain simply rode in as the knight in shining armour rode to the rescue and twisted the administration's arms into accepting his anti-torture legislation with no concessions. Although he would sure like you to think that. Although the McCain amendment appears to ban torture, it still allows the use of tortured information as evidence:
Mr. McCain's amendment is attached to a malignant measure - introduced by Senator Lindsey Graham, Republican of South Carolina, and now co-sponsored by Senator Carl Levin of Michigan, the top Democrat on the Senate Armed Services Committee - that would do grievous harm to the rule that the government cannot just lock you up without showing cause to a court. This fundamental principle of democratic justice must not be watered down so the Bush administration does not have to answer for the illegal detentions of hundreds of men at Guantánamo Bay and other prison camps.
Mr. Graham's original measure would at least have barred the use of coerced confessions from prisoners like those at Guantánamo. But the current version actually appears to allow coerced evidence. Lawmakers were also discussing language that would strip United States courts, including the Supreme Court, of the power to review detentions. Bruce Ackerman, a professor of law at Yale University, said that Congress had not attacked the courts in this fashion since Reconstruction.
This law will not pass Constitutional muster because it violates the separation of powers between Congress and the courts. If Congress can willy nilly tell the courts what they can and cannot rule on, then the Constitution would have no meaning whatsoever, because Congress can just pass a law exempting stuff from review that would not pass Constitutional muster otherwise. At some point in time, the SCOTUS will have to step in and define when Congress can and cannot limit their powers. As an extreme example, Congress could hypothetically attach a clause to every single bill they pass defining the bill they pass as not subject to SCOTUS review. If this is not abuse of power by Congress, then I want to know what is.
Mr. Bush had barely announced his deal with Mr. McCain before Attorney General Alberto Gonzales made it crystal clear that the administration would define torture any way it liked. He said on CNN that torture meant the intentional infliction of severe physical or mental harm, and repeated the word "severe" twice. He would not even say whether that included "waterboarding" - tormenting a prisoner by making him think he is being drowned.
In other words, the leopard has not changed his spots. The Bush administration has already shown that no law for them is worth the paper it is printed on. Everybody in the whole room can see that, except McCain. But John McCain's lack of knowledge here is telling. He doesn't know how Bush operates. Bush will cut deals and tell you whatever you want to hear -- and then go off and do what he thinks is best. We saw that when he ripped the Democrats off during the lead-up to the Iraq War when he led them to believe he would only attack Saddam as a last resort. Then, when the Democrats approved the measure, he defined "last resort" for himself and went ahead with his plans to attack Iraq.