^{More About: The History of Racial Profiling}

Photo: Justin Sullivan / Getty Images.

Earlier this week, Human Rights Watch and the Sentencing Project both released reports strongly indicating that antidrug law enforcement targets African Americans to an astonishing degree.

The larger and more shocking of the two, Human Rights Watch's Targeting Blacks: Drug Law Enforcement and Race in the United States, reports that (among other things):

• Despite decades of data indicating that between 65% and 70% of drug users are white, African Americans are 10.1 times as likely as whites to face prison time on drug-related charges.
• These prison disparities vary by state, with 10.1:1 representing a national average. In Wisconsin, African Americans are 42.4 times as likely as whites to go to prison on drug charges; in Mississippi, "only" 3 times as likely.
• Arrests of black suspects, even in cases of simple drug possession, also occur at a much higher rate. In Georgia, African Americans who make up 14 percent of drug users represent 58 percent of arrests. When the arrests are narrowed to cocaine possession, the difference is even more stark: African Americans in Georgia make up 22 percent of cocaine users, but 79 percent of arrests.

As the report points out, these disparities aren't necessarily due to police profiling--or at least not exclusively due to police profiling. Geography and policy disparities also play a role:

Drug law enforcement ... has focused on low-income, predominantly minority neighborhoods. This is not a "race neutral" factor. Press attention and community concerns about crack cocaine and political imperatives to be "tough on crime" made those neighborhoods the principal "fronts" in the so-called war on drugs. Practical policing factors have played a role as well: drug transactions in poor minority neighborhoods are more likely to be in public spaces and between strangers, making it easier to undertake arrests, such as via "buy and bust" operations, than it is in the bars, clubs, and private homes where drug dealing by whites is more likely to occur.

Human Rights Watch offers a list of eight suggestions to reduce racial disparities in enforcement. Among these is a greater emphasis on community courts and publicly-funded drug treatment programs, which have the effect of actually discouraging drug use, rather than emphasis on longer prison sentences, which have the effect of breaking community ties and discouraging future employment.

The other report, the Sentencing Project's Disparity by Geography: The War on Drugs in America's Cities, documents an average 3.4:1 per capita ratio of black-white drug arrests in 43 major cities. The report also documents that between 1980 and 2003, the rate of drug arrests for African Americans increased by more than 500% in 11 major cities. The only city where white drug arrests also increased by more than 500% during the same period was Buffalo, New York.

But the most startling thing about this report from my vantage point is not the data on racial disparities itself, which reinforces the conclusions of Targeting Blacks and similar reports, but rather the profoundly arbitrary character of drug law enforcement. Between 1980 and 2003, for example, Tucson experienced an 887% increase in drug arrests--compared to 52% in Phoenix and 13% in San Diego. There is no data suggesting that the drug problem in Tucson is appreciably worse than the drug problem in Phoenix or San Diego (nor is there any data suggesting that the 887% increase in rate of arrest has had a noticeably positive impact on drug use in Tucson), but the three municipalities have elected different local governments with different ideas of how to address the issue of drugs.

Both of these reports testify to the damage that the War on Drugs has done to black urban communities. Convicted felons are often barred from meaningful employment for life, even if the felony in question was drug possession. Prison sentences separate families and communities. Frequent arrests disrupt relationships between police and local communities, often leaving residents feeling more like victims of the criminal justice system than constituents. All of these factors encourage future drug use, which in turn encourages future arrests and future imprisonment.

There have been incremental reforms, both at national and local levels. In Mississippi, for example, the recently-signed SB 2136 eliminated mandatory sentences for some minor drug-related offenses. And the Second Chance Act of 2008 (see "The Prisoner's Dilemma") has created new incentives to help felons transition back into the workforce, a key factor in preventing future recidivism.

But at the root of this problem is a military understanding of the drug problem--a poorly-planned and incompetently managed "War on Drugs" that comes with no definition of victory, no definition of defeat, and nothing else that could be realistically described as an exit strategy. Like the "War on Terror," it is defined as an eternal war against vaguely defined enemies--which means that there must always be, by definition, no end in sight. In order to succeed as political theater, the War on Drugs must continue to fail in practice.

See also:

• 7 Arguments Against Racial Profiling

^{More About: The Sean Bell Shooting | Al Sharpton}

Photo: Mario Tama / Getty Images.

Under ordinary circumstances, the large-scale arrest of protesters is a bad thing--but the Rev. Al Sharpton and the family of Sean Bell, a man killed by three plainclothes NYPD officers the night before his wedding in November 2006, have definitely gotten the attention of the national press and the people of New York. Turnout numbered in the thousands. Civil disobedience arrests numbered in the hundreds. It was a successful nonviolent direct action in the tradition of Gandhi and King.

If this still sounds strange to you, let's look a little bit at the context of all this. Two weeks ago, a judge in a bench (non-jury) trial found the three officers who shot Sean Bell and his two friends not guilty on all charges, including the minor charge of reckless endangerment. The U.S. Department of Justice can file federal civil rights charges against the officers, but may or may not do so. What activists must do, right now, is persuade the Department of Justice to do so.

Since the Department of Justice is part of the executive branch, a political entity, this means that protesters need media coverage--and lots of it. And when planning yesterday's event, New York protesters figured out a way to get that coverage. Instructions can be found on the Sean Bell family web site:

Volunteers for arrest must be over 18 years of age; not have any type of open warrant or owe parking tickets or other fees to the City; submit emergency contact information, bring state or federal issued ID, and provide name, address, contact information and birth date to the organizing team to secure your fast release from jail and follow the instructions of National Action Network Team Contact and Legal Support.

• This is a peaceful protest which will be a violation and NOT A CRIME!

• You may spend anywhere between 4 – 24 hours in jail, depending on the precinct and volunteer turnout. Otherwise please come and support at any of the above six sites and be there by 3pm.

THIS IS A NON-VIOLENT EFFORT. IT IS AN ORGANIZED COLLECTIVE STATEMENT AGAINST AN UNJUST, INHUMANE, AND RACIST JUDGMENT! IT IS A POLITICAL STATEMENT. IT IS NOT A CONFRONTATION WITH THE POLICE.

And it wasn't. The entire protest went off without a hitch. The Bell family is planning a series of additional actions, culminating in a general strike that will, in Rev. Sharpton's words, "shut down the city" for a day. Other actions are also in progress. Governor David Paterson (D-NY) has agreed to meet with Sharpton and the Bell family this afternoon to discuss the case. The NYPD's internal investigation is still ongoing. Whatever happens, we can be sure that the story of the Sean Bell shooting will not quietly end with the acquittal of the officers who killed him.

See also:

• They Thought They Heard Somebody Say "Gun," So They Fired 50 Bullets

^{See also: Justice Antonin Scalia}

Photo: Alex Wong / Getty Images.

Yesterday, the U.S. Supreme Court ruled 6-3 that Indiana's restrictive new voter ID laws are constitutional.

Well, sort of.

It was actually more of a 3-3-3 ruling; justices Stevens, Kennedy, and Roberts held that the Indiana law was constitutional, but expressed concerns about possible voter disenfranchisement and an implicit willingness to reconsider these sorts of laws if they have the net effect of suppressing turnout. Justices Breyer, Ginsburg, and Souter wrote against the Indiana law, arguing that it poses an unacceptable burden on citizen voting rights.

But Justice Scalia went way off in right field, taking justices Alito and Thomas with him, in an opinion that would have upheld practically any restriction on voter participation as long as it is neutrally constructed, regardless of whether it has the net effect of disenfranchising voters.

Justice Scalia grounds his definition of unconstitutional discrimination solely in legislative intent, not the actual effect of a given piece of legislation. End result: Although he says he would oppose poll taxes now, the inescapable logic of Justice Scalia's opinion seems to be that if the Supreme Court happens to believe that a legislature didn't mean to suppress a specific group of voters, it doesn't matter what a given piece of legislation actually does. There is no reason why poll taxes, literacy tests, and other traditional voting restrictions of the Jim Crow era would not meet the Scalia test, provided that they were passed with no discernible whiff of conscious discriminatory intent.

As we head into an era where laws are increasingly passed that would have the net effect of discriminating against Latinos, I don't find it all that comforting that this sort of pre-civil rights era interpretation of voting rights law appears to be held by one-third of the U.S. Supreme Court. Let's hope Justice Scalia and his like-minded colleagues revise or clarify their position in a later opinion.

Read more:

• Crawford v. Marion County (2008): The Indiana Voter ID Ruling

^{See also: The Eighth Amendment}

Photo: Joe Raedle / Getty Images.

Earlier this week, the Supreme Court ruled 7-2 in Baze v. Rees that the three-drug cocktail currently used to administer lethal injections does not run afoul of the Eighth Amendment.

I'll have more to write about the ruling soon, but the central question of the ruling, for me, is the same as the central question of last year's ruling in Gonzales v. Carhart: When the Supreme Court is interpreting scientific data, on which side should it err? Read more...

^{Civil Liberties Platforms: Barack Obama | Hillary Clinton | John McCain}

Photo: Justin Sullivan / Getty Images.

Earlier this week, in my roundup of the remaining major-party 2008 presidential candidates, I characterized the positions of Barack Obama and Hillary Clinton as more or less equal on the issue of medical marijuana. Bruce Mirken of the Marijuana Policy Project rightly questions my assessment:

Personally, I'm not so sure it's a tie:

Asked by Willamette Week in Oregon, Hillary gives an answer with miles of wiggle room:

http://wweek.com/editorial/3422/10767/

What would you do as president about the federal government not recognizing Oregon’s Medical Marijuana Program as legal?

We’ve got to have a clear understanding of the workings of pain relief and the control of pain. And there needs to be greater research and openness to the research that’s already been done. I don’t think it’s a good use of federal law-enforcement resources to be going after people who are supplying marijuana for medicinal purposes.

So you’d stop the U.S. Drug Enforcement Agency’s raids on medical marijuana grows?

What we would do is prioritize what the DEA should be doing, and that would not be a high priority. There’s a lot of other more important work that needs to be done.

Should medical marijuana be covered by insurance?

I don’t have enough information to know anything about that.

---------

In contrast, Barack Obama has been much clearer:

http://www.medicalmarijuanaprocon.org/pop/candidateviews.htm#obama

Barack Obama, U.S. Senator (D-IL), stated in a Mar. 22, 2008 interview with Gary Nelson, Editorial page editor for the Oregon newspaper Mail Tribune:

"When it comes to medical marijuana, I have more of a practical view than anything else. My attitude is that if it's an issue of doctors prescribing medical marijuana as a treatment for glaucoma or as a cancer treatment, I think that should be appropriate because there really is no difference between that and a doctor prescribing morphine or anything else. I think there are legitimate concerns in not wanting to allow people to grow their own or start setting up mom and pop shops because at that point it becomes fairly difficult to regulate.

I'm not familiar with all the details of the initiative that was passed [in Oregon] and what safeguards there were in place, but I think the basic concept that using medical marijuana in the same way, with the same controls as other drugs prescribed by doctors, I think that's entirely appropriate.

I would not punish doctors if it's prescribed in a way that is appropriate. That may require some changes in federal law. I will tell you that...the likelihood of that being real high on my list is not likely. What I'm not going to be doing is using Justice Department resources to try to circumvent state laws on this issue simply because I want folks to be investigating violent crimes and potential terrorism. We've got a lot of things for our law enforcement officers to deal with."

Let's break this down a little bit and see if we can determine what, exactly, the two candidates are saying. Read more...

^{Civil Liberties Platforms: Barack Obama | Hillary Clinton | John McCain}

Photo: Salvatore Laporta / Getty Images.

The 2008 presidential race has more or less winnowed down to three candidates.

I say three instead of two because there's still one way that Hillary Clinton can win: By achieving an overwhelming superdelegate majority that will override Obama's lead among pledged delegates. I believe this strategy, which would involve (among other things) the disenfranchisement of the vast majority of black primary voters, would have disastrous long-term effects on the party. But decisions with disastrous long-term effects have historically played an important role in national politics, so it would not be fair to pretend that Hillary Clinton is no longer a viable candidate. She is, and will remain so unless and until she decides not to be.

Missing from many of these discussions of the 2008 political process and its historic implications is John McCain. In any ordinary year, an outspoken, freethinking disabled war vet running to become the oldest president elected in U.S. history would stand out a little more--but 2008 is not an ordinary year. It's a year full of historic firsts, and each of the three candidates, in their own way, would change the way we look at the presidency.

At the top of this blog entry, I've provided links to summaries of each candidate's civil liberties platform. But what I aim to do here is rank the candidates on specific issues important to civil libertarians, beginning alphabetically with... Read more...

^{See also: The Eighth Amendment}

Photo: Justin Sullivan / Getty Images.

It's easy to go to prison, especially if you're poor, young, careless, and/or just plain unlucky.

That's one of the messages I took away from the final panel discussion at this weekend's ACLU criminal justice conference here in Jackson, Mississippi. The panel, focusing on recidivism, was made up largely of ex-convicts who had successfully turned their lives around, secured long-term employment, and now run successful programs to help new ex-convicts reenter the workforce. Several were ordained ministers. My recollection is that all said that they had been exceptionally fortunate to have support systems and employment prospects in place when they left prison.

In the United States, we have the world's largest prison population and one of the world's most permanent definitions of criminal status. Ex-felons are denied access to college financial aid, job prospects, loans, and other vehicles for social mobility that most of us take for granted. And while we tend to think of felonies in terms of violent crime, it isn't as difficult to become a felon as one might think--numerous drug and property offenses qualify as felonies. There are times when simply being in the wrong place at the wrong time with the wrong people when you're 19 is enough for a felony accessory charge that will still haunt you when you're 50.

Congress has passed new legislation, the Second Chance Act of 2008, that--once it is signed by President Bush tomorrow--may represent the most substantial piece of civil liberties reform enacted by the Democratic Congress to date. It would institute new initiatives to help ex-convicts adjust to life outside of prison, a goal that is both humanitarian and, as a means of reducing the obscenely high 67% three-year recidivism rate, practical.

To leave ex-convicts with no support network may appeal to some policymakers' alleged sense of rugged American individualism, but in real-world terms all it does is violate the rights of ex-convicts, encourage recidivism, and diminish the possibility of rehabilitation. We should remember that our nation's prisons began, under the Walnut Street model, as penitentiaries--institutions that are meant to bring about penitence. It's hard to repent when there's no promise of a better life on the other side, particularly when one has just spent an entire prison term with other, often more hardened, prisoners.

The Second Chance Act is a solid piece of legislation. In this case I have no criticism, no action alert, no cynical spin. Congress did its job by passing this necessary piece of bipartisan legislation, and President Bush will do his by signing it. More work needs to be done vis-a-vis prisoner reentry, primarily on the state and local level, but this piece of federal legislation will help protect the rights of ex-convicts while simultaneously laying down the groundwork for a lower recidivism rate. It's good, sensible policy, and good, sensible policy seldom makes it this far. Let's take a deep breath and enjoy it.

See also:

• Go to Jail! Go Back to Jail! (Robert Longley / About.com: U.S. Government Info)

^{See also: Summary of the Libertarian Party Platform}

Michael Badnarik, a leading voice in the U.S. Libertarian Party. Public domain photo by Seth Ilys; image courtesy of Wikimedia Commons.

During the 2006 Mississippi U.S. Senate election, I had difficulty choosing between the Republican and Democratic candidates. As I always try to do, I gave the third party candidate--Harold M. Taylor of the Mississippi Libertarian Party--a look. What I discovered was that he was to the right of both candidates on immigration, and at least as far right as either of them were on abortion and lesbian and gay rights. His libertarianism, as it was conveyed to me, was defined mainly by his commitment to state's rights and his vision of a small government. Very much a Ron Paul libertarian.

Ron Paul himself ran for the Libertarian Party's presidential nomination in 1988, and got it. His socially conservative positions on issues like abortion and immigration were not shared by his chief opponent, Russell Means, but they were no obstacle to his candidacy. It has generally been understood that the Libertarian Party's base of support draws to a great extent on Republican demographics--almost exclusively white men concerned primarily about low taxes, state autonomy, and border security. Goldwater Republicans, in other words. Read more...

^{See also: A History of Prostitution}

Photo: Chung Sung-Jun / Getty Images.

Last week's resignation of Governor Eliot Spitzer (D-NY), following revelations that he was a regular client of one of New York's most expensive prostitution rings, has resurrected the debate over legalizing prostitution.

I have no sympathy for Eliot Spitzer, and whether he faces charges or not is of no particular concern to me. As a former attorney general who had prosecuted prostitution rings in the past, he knew what the law said and he knew what the consequences of breaking the law could be--the legal consequences, the political consequences, and the consequences to his family and his supporters. He decided to take that risk, either because the experience was worth it for him or because he believed he would never get caught. Neither possibility speaks well of him.

Alan Dershowitz, who can always be counted on to say something provocative, spoke out in defense of Spitzer:

... But I feel that this is a America-only story that we have to put in perspective. You know, big deal, married man goes to prostitute! In Europe, this wouldn't even make the back pages of the newspaper. It's a uniquely American story. We’re a uniquely, you know, pandering society and hypocritical society, when it comes to sex.

I would challenge Dershowitz to name one major current European leader who is known by the mainstream press to be a regular prostitution client. I don't know of any. Public disclosure of extramarital affairs is a little more common among European leaders, certainly--this was an argument made during the Bill Clinton sex scandals--but that has nothing to do with prostitution, except to the extent that Spitzer hired prostitutes while married.

So let's drop all this foolishness about poor little Eliot Spitzer. He resigned as governor, and good riddance. The debate over legalizing prostitution should not be about protecting him. It should be about protecting the real victims of prostitution. Read more...

^{See also: Torture and the Waterboarding Debate}

Photo: Pool / Getty Images.

On Saturday, President George W. Bush vetoed a bill that would have banned the CIA from using waterboarding and other forms of torture.

But the bill is being described in two radically different ways.

What the Bill Actually Says

What we refer to as "the torture ban" is section 327 of the much larger H.R. 2082, the Intelligence Authorization Act for Fiscal Year 2008. This is the full text of section 327:

SEC. 327. LIMITATION ON INTERROGATION TECHNIQUES.

(a) Limitation- No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.

(b) Instrumentality Defined- In this section, the term `instrumentality', with respect to an element of the intelligence community, means a contractor or subcontractor at any tier of the element of the intelligence community.

Section 327 is not the only part of the bill that Bush found objectionable, but it is the most interesting part of the bill and the only part of the bill that directly confronts the controversial issue of torture. It doesn't specifically ban waterboarding, but the use of waterboarding is prohibited in the Army Field Manual. Under Section 327, CIA interrogations would need to be conducted in a manner consistent with section 34-52 of the Manual. Chapter 1 of FM 34-52, for example, includes a prohibition against the use of force:

The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor. condoned by the US Government. Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear. However, the use of force is not to be confused with psychological ploys, verbal trickery, or other nonviolent and noncoercive ruses used by the interrogator in questioning hesitant or uncooperative sources.

The psychological techniques and principles outlined should neither be confused with, nor construed to be synonymous with, unauthorized techniques such as brainwashing, mental torture, or any other form of mental coercion to include drugs. These techniques and principles are intended to serve as guides in obtaining the willing cooperation of a source. The absence of threats in interrogation is intentional, as their enforcement and use normally constitute violations of international law and may result in prosecution under the UCMJ.

Additionally, the inability to carry out a threat of violence or force renders an interrogator ineffective should the source challenge the threat. Consequently, from both legal and moral viewpoints, the restrictions established by international law, agreements, and customs render threats of force, violence, and deprivation useless as interrogation techniques.

But this isn't everything the Army Field Manual has to say about interrogations. Even within chapter 1, for example, there is a paragraph that requires interrogators to use "patience and tact":

The interrogator must have patience and tact in creating and maintaining rapport between himself and the source, thereby, enhancing the success of the interrogation. Additionally, the validity of the source's statements and the motives behind these statements may be obtainable only through the exercise of tact and patience. Displaying impatience encourages the difficult source to think that if he remains unresponsive for a little longer, the interrogator will stop his questioning. The display of impatience may cause the source to lose respect for the interrogator, thereby, reducing his effectiveness. An interrogator, with patience and tact, is able to terminate an interrogation and later continue further interrogation without arousing apprehension or resentment.

The chapter also urges interrogators to follow through on promises and keep detailed reports:

The interrogator must maintain credibility with the source and friendly forces. Failure to produce material rewards when promised may adversely affect future interrogations. The importance of accurate reporting cannot be overstressed, since interrogation reports are often the basis for tactical decisions and operations.

And this is just the first chapter; FM 34-52 contains nine.

McCain's Response

Senator John McCain (R-AZ), 2008 Republican presidential nominee, is himself a torture victim and regarded as a firm and consistent opponent of torture. His response to the bill probably makes the strongest case against it:

During conference proceedings, conferees voted by a narrow margin to include a provision that would apply the Army Field Manual to the interrogation activities of the Central Intelligence Agency. The sponsors of that provision have stated that their goal is to ensure that detainees under American control are not subject to torture. I strongly share this goal, and believe that only by ensuring that the United States adheres to our international obligations and our deepest values can we maintain the moral credibility that is our greatest asset in the war on terror.

That is why I fought for passage of the Detainee Treatment Act (DTA), which applied the Army Field Manual on interrogation to all military detainees and barred cruel, inhumane and degrading treatment of any detainee held by any agency. In 2006, I insisted that the Military Commissions Act (MCA) preserve the undiluted protections of Common Article 3 of the Geneva Conventions for our personnel in the field. And I have expressed repeatedly my view that the controversial technique known as "waterboarding" constitutes nothing less than illegal torture ...

When, in 2005, the Congress voted to apply the Field Manual to the Department of Defense, it deliberately excluded the CIA. The Field Manual, a public document written for military use, is not always directly translatable to use by intelligence officers. In view of this, the legislation allowed the CIA to retain the capacity to employ alternative interrogation techniques. I'd emphasize that the DTA permits the CIA to use different techniques than the military employs, but that 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.

Similarly, as I stated after passage of the Military Commissions Act in 2006, nothing contained in that bill would require the closure of the CIA's detainee program; the only requirement was that any such program be in accordance with law and our treaty obligations, including Geneva Common Article 3.

The conference report would go beyond any of the recent laws that I just mentioned - laws that were extensively debated and considered - by bringing the CIA under the Army Field Manual, extinguishing thereby the ability of that agency to employ any interrogation technique beyond those publicly listed and formulated for military use. I cannot support such a step because I have not been convinced that the Congress erred by deliberately excluding the CIA. I believe that our energies are better directed at ensuring that all techniques, whether used by the military or the CIA, are in full compliance with our international obligations and in accordance with our deepest values. What we need is not to tie the CIA to the Army Field Manual, but rather to have a good-faith interpretation of the statutes that guide what is permissible in the CIA program.

This necessarily brings us to the question of waterboarding. Administration officials have stated in recent days that this technique is no longer in use, but they have declined to say that it is illegal under current law. I believe 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 wold 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.

I think McCain's response is inadequate, and I'll say why below, but I will concede his central point: The current legislation seems to be yet another piece of the Democratic Congress' legislative agenda that was written to produce an enforceable veto. Had the bill simply applied FM 34-52(1)'s prohibition on the use of force to CIA interrogations, for example, then that would have banned waterboarding and other torture techniques. But why apply the entire Army Field Manual to CIA interrogations? There is no reason why CIA officials should not be able to lie to, or break promises to, suspected terrorists. We have not discussed the issue of whether the CIA should be allowed to practice brainwashing. Certainly the CIA is under no obligation to observe "patience and tact," or to follow FM 34-52(3)'s linear interrogation structure, or to keep military-style records. The objective of the bill should be to ban torture. All torture, including "torture-lite" techniques. Period.

Why McCain is Still Wrong

At the same time, however, McCain tipped his hand by suggesting that the executive branch's interpretation of the DTA should be deciding factor vis-a-vis what constitutes torture. This means that he holds to an interpretation of executive power in which banning torture becomes very difficult. If there is room for executive interpretation, room for a president to decide (for example) that waterboarding isn't really torture and therefore isn't really illegal, then it's hard to say that passage of the DTA accomplished anything at all.

If all John McCain intended to say was that a McCain administration would decide not to use torture in the way that the Bush administration has, because he would choose to interpret the DTA in a more restrictive manner, then he's speaking as a presidential candidate, not as a legislator. That isn't terribly surprising, considering the timing of all this, but if he's really committed to outlawing torture on a long-term basis, focusing on administration-specific differences in interpretation isn't good enough. Really banning torture would necessitate binding changes in policy--with impeachment-worthy criminal charges attached, and a means of allowing for independent investigation of such charges. I'm not sure Congress is ready to take that step yet. But unless and until it does, it's hard to say that any bill--the DTA or H.R. 2082--would really "ban" torture.

See also:

• Is Torture (Ever) Justified?
• American Torture Techniques
• Torture and False Confessions