The Right CIA Torture Exemption

I was reading the White House press briefing transcript from yesterday, where there was an ugly 32-question/interruption rant by primarily one reporter who was pressing on why VP Cheney is seeking a CIA exemption from the McCain terror bill.

McClellan, of course, didn't answer her directly; so deep is his distaste for MSM's unhidden contempt for his boss. But it got me thinking -- why is Cheney seeking an exemption?

Here are the two relevant paragraph's of McCain's bill:

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

OK. He's covering domestic and overseas facilities we control. But what's that "cruel, inhuman, or degrading treatment or punishment" mean? The ACLU's definition is certainly different than mine. So let's dig deeper:

(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

That's four qualifiers. I'll give you a hint: The last one is the only one that matters, and I put the subhed "The Nitty Gritty" there, if you want to skim right to it, but there's some interesting stuff between here and there.

Let's look at the Constitutional amendments McCain mentions.

• The 5th is of course prohibits self-incrimination and the taking of property without just compensation (love that one!). It also covers not being held without an indictment, no double jeopardy, and the well known, "nor be deprived of life, liberty, or property, without due process of law."

That's an awful lot of rights to give to a terrorist leader who doesn't follow the Geneva Conventions. It's easy to see why terrorist-fighters could see a need to exempt certain operations from this.

• The 8th Amendment is referenced for its prohibition of cruel and unusual punishment, but it does not define the terms. Lots of court cases do, but they go this way and that.
  

• Turning to the 14th, it's got five sections, four of them dealing with Congress, and the first granting US citizens due process under laws. Here I agree with McCain. As scummy as some of our citizens are, we must treat them as citizens.

So those provisions don't do anything to constrain ACLU crazies from getting bombers out of jail today so they can kill American innocents tomorrow.

Let's look then at that mouthful: the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, which was passed in 1984 and ratified a couple years later.

Unlike everything we're read so far, the Convention has a somewhat more definitive definition of torture:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ....

The addition of the word "severe" helps us better define what's torture physically, but it offers little help in defining mental torture. Is seeing a Koran handled by an infidel extreme mental torture? But this is as good a definition as we will see.

The Convention includes one additional pertinent section, 3.1, that prohibits expelling, returning or extraditing a person to another state where there is substantial grounds for believing he would be tortured.

This does not exactly describe our use of off-shore prisons, because we use them without expelling, returning or extraditing a person ... but that's a thin line, and the intent is clearly contrary to one of our necessary anti-terrorist strategies. In our Reservations, we defined "substantial grounds" to mean "more likely than not," a bit of wiggle room.

The Nitty Gritty

Be that as it may, it's not the Conventions that matter so much as the United States Reservations, Declarations and Understandings (RDUs) regarding the Convention. Some states passed it with no "RDUs," but the US attached the longest RDU of any nation.

Our RDU provides the clearest definition of torture yet:

That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Finally, we appear to have a clear definition of torture. And I don't much like what I read; it's not what Americans do to others.

Nonetheless, Cheney should still be lobbying for a CIA exemption. He doesn't need an exemption for all of this provision, not because we should have a big heart for the terrorists, but because we've got better methods than this to get the goods on these guys.

The media's not reporting on the details of his lobbying trips; they're just relying on their Cheneynoia to spin an evil agenda for the man. But watch; he'll give McCain this one (or most of it), restricting CIA ops from savage physical/mental torture, but giving our agents the tools and protection they need.

And if he's on his game, he'll get all the other ACLU-fodder out.