No Guts No Glory

by digby

It's clear that Obama won the debate last night (and would have even if he'd never opened his mouth) because the man sitting opposite of him made a complete ass of himself, as he usually does.

But there was one thing Obama said that quite bothered me --- he gave credit to McCain over the issue of torture. He isn't the only one. I was watching the Frontline broadcast about the two candidates the other night and it too gave McCain big kudos for his position against torture, segueing directly into the story of McCain's captivity in Vietnam.

This is fundamentally incorrect. McCain was supposed to be the stalwart opponent of torture and he failed. He was the shiny pink lipgloss on the pig called the Military Commissions Act, and it was actually the lowest, most dishonorable betrayal of principle I've ever seen a politician make. To give him credit for being against torture when he sold his reputation as a POW to the Bush administration to help them legalize it is just mind-boggling.

Here is what happened:

After first insisting that federal law clearly and unambiguously outlaw “torture,” McCain suddenly caved to White House pressure on the MCA, allowing the Administration to insert into the law a clause that effectively allows (and, indeed, legally buttresses the efforts of) the executive branch to implement torture as a means of interrogation.

Without McCain’s pander, there would have been no bad law for the Court to strike down last week. Without McCain’s grandiloquent appeal to Democrats and moderates during that lame-duck session, there quite possibly might have been a better law that just might have passed its constitutional test this term.

McCain’s sell-out on the torture language is not the reason the Justices declared the MCA unconstitutional. It is not the reason why the detainees now have more access to federal courts than they did before. But it is emblematic of the larger and much more destructive, seven-year-long sell-out of the legislative branch in the legal fight against terrorism.

And that emblem, thanks to the Supreme Court, now has John McCain’s face on it just in time for the run-up to the general election.

Unfortunately, everyone seems to have forgotten what McCain did and insist on giving him credit rather than the condemnation he so richly deserves.

McCain then went on to vote against the legislation that would have required the CIA to follow the Army Field manual, which would have explicitly banned the agency's use of torture. And this week, we found out even more about the cover-up of these activities which the administration had already approved. McCain has not stepped up to condemn this as far as I know.

Here's how John Weaver, his former close advisor, described the fearless maverick's "negotiations" with the Bush administration on the Military Commissions Act in a Frontline interview:

And then 9/11, the torture amendment -- torture is an issue that John McCain, of course, feels very personally.

That struck, I think, the rawest nerve with him of any issue that I saw in my 12 years of being associated with John in an intimate manner.

But it was a very tough fight. The White House was unyielding. McCain had the moral high ground. But we had to work like hell, like hell, to move that through the Senate. And the negotiations with the White House ranged from the bizarre to angry. And it was a tough situation.

And when [Vice President Dick] Cheney comes in [with] his full-court press, is this John McCain at his finest?

You could say that. You could say that about maybe the immigration issue. But certainly he rose to the occasion, and he took the vice president on, who at that point was at the peak of his power at the White House and with the Republicans in the Senate. I think McCain called negotiating with Cheney akin to negotiating banking reform with Bonnie and Clyde -- just not something that's really doable. Ultimately, the president saw that and then moved to, oddly enough, make [White House Counsel] Harriet Miers the negotiator, and that didn't work, and then it moved to the national security director.

You could also say that John McCain folding in the face of pressure on an issue of fundamental principle was because he is either cowardly, craven or naive. If this was his finest, I'd hate to see his worst.

Then there's the victory, and there's a famous shot of Bush and McCain shaking hands in the Oval Office. But then the signing statement surfaces. How does he take that?

He did not take that well, on multiple grounds. Again, getting back to honor, it's not an honorable thing to negotiate an agreement in an intense way, to have a very public coming together as the president and John did in the Oval Office, and then for the president to sign the bill in a very public ceremony, and then to issue a statement or a letter that undercut much of the bill. I think it got to the core thing about McCain, which is honor. Congress doesn't like to be treated that way, and that was part of it, but it really had to do about honor.

There's one other practical side of it, though, the much-talked-about CIA loophole. Where does that come from?

When you're trying to pass something, the perfect can be the enemy of the good. And I think at the end of the day, they did the best they could on that issue. And I think that's how he sees it. I mean, he worked very hard with [Sen.] Lindsey Graham [R-S.C.] and with Colin Powell. And I can assure you that if he's president, that will be fixed immediately.

Some honor. That is all utter bullshit. The signing statement wasn't the problem, although it was odious. The MCA itself, the one that McCain allegedly negotiated, said that that detainees had no right to judicial review, thus removing any chance that anyone would ever know if they'd been tortured or if the Geneva Conventions, which prohibit torture, had been violated. Here's Jack Balkin:

Any CIA official who acts in good faith will probably conclude that waterboarding, hypothermia, stress positions, and related techniques violate one or more of these features of American law.

What the new Military Commissions Act of 2006 (MCA) did, however, was to make these legal norms effectively unenforceable. That is why Rickard's op-ed is a bit misleading. The McCain Amendment does not provide an individual remedy for violations, the MCA states that individuals cannot enforce their rights under the Geneva Conventions in judicial proceedings, including applications for habeas corpus.

The bottom line is simple: The MCA preserves rights against torture and cruel, inhuman and degrading treatment, but it severs these rights from any practical remedy.

No thanks to John McCain (and his faithful hound Huckleberry Graham who actually went so far as to defraud the Court in these matters) the Supremes reinstated the write of habeas corpus in Boumadiene. (They don't like being told they are irrelevant.)

The fact is that McCain and Warner and Huckleberry Graham allowed their reputations as "mavericks" and "statemen" to be used as cover for the Bush administration's torture policies. Whether it's because they rolled over and presented their underbellies to Dick Cheney like he was the alpha dog from hell or they conspired with the administration to cleverly outlaw torture while removing any way to prosecute those who broke that law, is irrelevant. The result was that John McCain lost what was left of his reputation the day he put it on the line for that piece of garbage.

I never liked McCain, obviously. He's a conservative and a jerk. But I did think he had some core principles until he sold his soul on this issue. It's true that you can't let "the perfect be the enemy of the good" but when it comes to torture, it's not about "perfect or good." It's simply about "right and wrong." If McCain had stood up against this bill, it wouldn't have passed. The nation would have preserved some semblance of its tattered honor. Instead, he basked in the glow of his president's approval and later went on to enable the CIA to torture even further. He deserves nothing but contempt for that craven and disreputable act.