McCain Amendment put an end to torture? Not a chance.

The press is all aflutter with the news that last night, the House of Representatives voted to support John McCain's torture amendment. But, but, but. Not so fast. The final decision on whether the amendment will be included in the Defense Authorization Bill lies with the House/Senate conference committee. And, if the linguistic acrobatics in another related, but virtually undiscussed, provision gets the go ahead (which appears likely), the McCain amendment becomes irrelevant. Senators Lindsey Graham (R, S.C.), John Warner (R, Va.) and Carl Levin (D, Mich.), under pressure from the White House, have changed the language in the provision so that it reads like this:

(1) Assessment -- The procedures submitted to Congress pursuant to subsection (a)(1(A) shall ensure that a CSRT, ARB or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall to the extent practicable assess -- (A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and (B) the probative value (if any) of such statement
What would that mean if it's passed by Congress? It would mean that the tribunals that the Pentagon established, also referred to by some as "kangaroo courts" because they are not the established courts martial system, and are therefore not subject to the same checks and balances, are here to stay. Note the language as well: "any similar or successor administrative tribunal or board." It's actually setting the stage for legalization of the creation of any other tribunal or board that the Pentagon might feel like throwing together. Hell, why not create a different judicial system for each new war we think up?

The specific pertinence to the McCain amendment is in the discussion of the determination of the status of each detainee. (A) and (B) effectively give ex post facto justification for torture (the pseudonym here being used is "coercion"). (A) essentially states that the tribunal (read: Rumsfeld's made-up court), when it is deciding what to do with a detainee, can use statements extracted under torture if they found them to be of "value."

This is serious business. Scott Horton over at Balkinization writes,
If adopted, this language could be viewed as acceptance of the Rumsfeld view that there is no prohibition per se on the use of evidence extracted by torture or other highly coercive means. In the history of the American Congress, this would mark its first acceptance of torture as a technique and blessing on the use of its fruits. Coming after an 18-month public debate over torture policies at the end of which a solid consensus has formed against the Administration's viewpoint, this would be a shocking result.

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