Congress
From American Gulag
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[edit] Congressional Undersight?
Does Congress actually have an oversight role in preventing human rights abuses by American forces, and if so is it effective? What guides Congressional human rights decisions- politics or morals?
In 2005 Arizona Senator John McCain, a former Vietnam POW and a Republican, introduced amendment 1977 to a defense appropriations bill. The original amendment, which later became known as the Detainee Treatment Act of 2005 or the McCain Detainee Amendment, banned torture or other inhumane treatment of prisoners. McCain fought off a challenge by Vice President Dick Cheney, and in October the amendment passed the Senate by 90-9. But with the White House still opposed, McCain and the president reached a deal before the end of the year that weakened the bill enough so that President Bush would sign it. Then President Bush issued one of his controversial executive signing statements that laid out his interpretation of the amendment as inapplicable if the executive in chief decides it is not in the country’s interest.
When the McCain Amendment was introduced it was celebrated by human rights organizations such as Amnesty International as an important step in ensuring the U.S. security forces would not torture prisoners to obtain information. But some of those same initial supporters now claim the bill has lost its teeth, to the point of being largely ineffective. And one of the most surprising aspects of the deal was that McCain himself had allowed the bill to become so weakened.
While some human rights organizations wonder why McCain let this happen to his amendment, something he has been passionate about due to his own abuse at a North Vietnam prison camp, some political experts wonder if he had any choice. When it comes to oversight of human rights abuses by American security forces, sometimes Congress has little power beyond publicity, and political survival will sometimes trump moral obligation.
The checks and balances system in American government gives Congress the power to look into executive office activities. This includes matters of national security and intelligence, even if some of those briefings and testimonies are held behind closed doors. Through the ability to hold hearings in committees, confirmation power for certain high level executive positions, and legislation Congress should have the power to steer the United States away from human rights abuses.
Committees such as Foreign Affairs, Armed Services, the Select Committee on Intelligence, Government Reform and Oversight, Homeland Security and Judiciary have jurisdiction in issuing subpoenas to executive employees to testify about how the United States treats its prisoners. Better attended by members of the media than speeches on the floor of the House or Senate, these hearings become glorified press events that give Senators and Representatives a pulpit to publicize problems and force compliance through political embarrassment. And sometimes this works. In May 2006 Representative John Murtha alleged before reporters at a Capitol Hill press conference that U.S. Marines in Haditha had massacred innocent civilians. Murtha’s remarks ignited media attention in the incident and by December eight Marines were facing charges.
With the war on terror and the invasion of Iraq there have been plenty of alleged human rights abuses against the United States besides the Haditha killings to investigate. In 2004 NBC reporter Kevin Sites, who was embedded with an American Marine unit in Fallujah, filmed and released video of a Marine shooting and killing a wounded and unarmed prisoner. The United States found itself in another scandal when pictures showing interrogation techniques at Abu Ghraib prison that included nudity, barking dogs, and feces found their way onto television, newspapers and the Internet. Washington Post reporter Dana Priest won a Pulitzer Prize for her reports on American tactics in the war on terror, including secret prisons in Europe. Conditions and the state of prisoners at a facility in Guantanamo Bay are controversial enough that Defense Secretary Robert Gates tried (unsuccessfully) to shut the prison down.
Occasionally Congress takes action. Representative Henry Waxman, chair of the House Oversight and Government Reform Committee, introduced . They have held hearings to investigate the conditions at Guantanamo Bay, and also investigated the Abu Ghraib scandal. In a May 7, 2004, hearing on Abu Ghraib, Senator Robert Byrd excoriated Defense Secretary Donald Rumsfeld in front of the media. “Mr. Secretary, it was President Truman who was said to have displayed the famous sign on his desk: The buck stops here,” Byrd said to Rumsfeld. “I served with President Truman. He was an honorable man. He did not shirk his responsibility. I see a very different pattern in this administration. I see arrogance and a disdain for Congress. I see misplaced bravado and an unwillingness to admit mistakes. I see finger-pointing and excuses.”
Congress itself has not escaped allegations of directly aiding human rights abuses by the executive branch. The Military Commissions Act of 2006 made it possible to try “enemy combatants” through military tribunals. While Republican supporters of the bill lauded the new ability to legally hold and try alleged terrorists and enemies. But opponents, most of whom were Democrats, complained that the Act allowed the government to paint anybody they wished as an “enemy combatant” who would therefore lose their rights to challenge their detention in a court.
But does Congress actually have any real power of human rights oversight? Hearings can apply political pressure, but the effectiveness relies on media availability and reaching a difficult to identify consensus of public opinion. The effectiveness of legislation becomes a point of political contention based on which elected leaders you choose to trust. Other legislative actions simply can be ignored. The Non-Detention Act of 1971 stated that any imprisonment of an American citizen for security reasons which denied the prisoner any of his constitutional rights requires Congressional authorization. However Jose Padilla was held by a military prison for three and a half years without being charged.
Regardless what actions the legislative branch decides to take, the executive might try to overrule with a signing statement. Signing statements are sometimes issued by the President to lay out his interpretation of a law, and direct how the law will be implemented. While not dealt with directly in the Constitution, proponents point to Article 2, Section 3 that says the President must “take care that the laws be faithfully executed.” These statements can be used to ignore a law, or direct the implementation in a way so that the law loses all its power.
Before 1980, American Presidents had issued only 75 statements. President Bush has applied the tool more liberally, issuing over 130 signing statements himself that have challenged hundreds of laws. “The legal claim about a president's constitutional powers as commander in chief to bypass a law restricting his actions in order to protect national security is not unique and can be found in a number of Bush's signing statements,” said Charlie Savage, a Boston Globe reporter who won a Pulitzer Prize for his reporting on President Bush’s use of signing statements.
With such limited power, members of Congress sometimes find themselves in situations that force them to choose between policy and their political survival or advancement. In order to give voters the appearance that you have accomplished something significant, which you can point to during your next campaign, some elected leaders find it more realistic to come to a powerless compromise rather than campaign on “standing firm.” Voters remember results, not political maneuvers. As Senator McCain found, even an anti-torture bill from a torture victim can fall prey to political expediency.
From 1967 to 1973 John McCain was held in a North Vietnamese prison camp, having been shot down near Hanoi. He was tortured and interrogated by the North Vietnamese regularly, and still has major injuries from his beating sessions. Therefore it came as little surprise that over 30 years later as a senator and favorite for the Republican presidential nomination in 2008 he would introduce legislation banning torture of foreign prisoners by American security forces.
When McCain first introduced the amendment the White House was opposed. In the war on terror the Bush administration has fought hard to stretch the limits of what it can do legally to get information from suspects and prisoners during interrogations. The McCain Amendment’s original language would have forced the interrogation techniques to be limited to only those outlined in the Army Field Manual, otherwise known as FM 34-52, which outlined only techniques consistent with the Geneva Conventions. The Geneva Conventions lay out the conditions under which countries can hold prisoners of war, including Article 17 which states: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.” Under the McCain Amendment this would apply even to “enemy combatants” held in Guantanamo.
Senator McCain resisted Vice President Cheney’s attempts to kill the amendment or add an exemption for the CIA. The amendment passed the Senate in early October. But with the White House still opposed and threatening a veto, McCain and Bush entered into a game of political chicken. Would McCain not alter his amendment at all and risk the bill being vetoed, resulting no limits at all for interrogation techniques? Or would the President gamble that by issuing a veto for the defense appropriations bill, especially when desperately needed to fund troops in the war on terror, he would send a signal to future crusaders that he was in control of how interrogators coerced intelligence and that he was willing to delay funding for his troops if he had to?
The negotiations produced a result by the end of the year. And some of the human rights advocates such as Amnesty International who had initially been so supportive of the amendment no longer supported McCain’s amendment.
There were three separate actions which critics claim weakened the law so as to strip it of Senator McCain’s original intent. An amendment introduced by Republican Senator Lindsey Graham and co-sponsored by Senator Carl Levin, then the senior Democrat on the Senate Armed Services Committee, allowed for coerced intelligence to be used and eliminated the courts’ ability to review detentions. A New York Times editorial published the day after the deal was announced described the Graham/Levin amendment as “a malignant measure…that would do grievous harm to the rule that the government cannot just lock you up without showing cause to a court.” A New York Times news story on the same day, December 16, characterized the relationship between the McCain Amendment and the attached Graham/Levin measure as “seemingly contradictory.”
The second action came from McCain himself. He added language to the bill that gave civilian interrogators legal protections that military interrogators already had, specifically an ignorance defense. The language stated that interrogators could not be prosecuted for inhumane actions if a “person of ordinary sense and understanding would not know the practices were unlawful.” In other words, under the Graham/Levin amendment the coerced intelligence could be used, and with McCain’s addition the torturer could easily avoid prosecution.
The final straw for some human rights advocates was the executive signing statement President Bush issued on December 30 that said he would implement the law in a way he thought would best protect against terrorist attacks. “The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President…as Commander in Chief,” the statement read.
Savage led his January 4, 2006, story on the statement by writing Bush “quietly reserved the right to bypass the law under his powers as commander in chief.”
Administration officials insisted they would not allow the new law to interfere with their intelligence gathering. Attorney General Alberto Gonzales, an architect of many of the legal justifications the Bush administration used to defend their aggressive interrogation techniques, said on CNN, “Congress has defined what torture is, and it is intentional infliction of severe- I emphasize the word severe- intentional infliction of severe physical or mental pain or suffering.”
Some reporters say that the original intent of the McCain Amendment was altered after the deal and the signing statement. “To the extent that the McCain Amendment was intended to close all loopholes and erase any suspicions about the abuse of detainees in US custody, the signing statement made the new law less effective by reviving uncertainty about what is happening or might happen in the future,” Savage said.
Why did McCain allow the bill to pass? A simple answer is appearances, specifically of a political accomplishment. By weakening the bill enough that it would pass McCain gave himself a definitive accomplishment he could use during his presidential campaign in 2008.
In a January 4, 2006, joint statement with Senator John Warner, McCain said that he believed the president understood the intent of the amendment. “The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee intends through strict oversight to monitor the Administration's implementation of the new law,” the statement read.
The alternative was to let the president exercise the veto. If this happened there would have been two scenarios. One is McCain would have been forced to campaign on the principle of banning torture, and voters would have a reminder of his legislative failure. The second scenario would have involved Congress overriding the veto with two-thirds of the vote. With the substantial support the amendment initially received, McCain should have felt confident. However, as Savage noted, it is possible some of the original supporting votes would be changed after the deal was made with the White House.
McCain’s deal paid off for him in the press. The media covered the deal as a major victory for the Arizona senator over the president. A December 18 Washington Post story was headlined “Bush Relents, Backs McCain’s Torture Ban.” A subhead on a December 16 Washington Post story read “McCain Proposal Had Veto-Proof Support” and described the deal as “a setback for the administration.”
The article went on to characterize McCain’s compromise as minimal, and claimed he achieved his objective of banning prisoner abuse and requiring compliance with the Army field manual. Tom Wilner, a lawyer for a group of Guantanamo prisoners, was quoted as saying the Graham amendment would “more than erase anything good that comes out of McCain.” But the focus of the article was on McCain’s victory over the White House, even quoting a spokesman from Human Rights Watch who called the bill “a giant leap forward.”
A December 16 article in the Boston Globe described the president as reversing its position after the initial refusal left President Bush “politically isolated.” The story was headlined “Bush Accedes to McCain in Backing Ban on Torture.” On January 1st, a New York Times story stated that McCain and a congressional revolt had “forced” President Bush to sign the McCain Amendment.
With coverage proclaiming his fortitude and ability to defy the White House Senator McCain could define himself as a strong moral leader. Any criticism in the press of the bill’s weaknesses was aimed at the signing statement or the Graham/Levin Amendment. McCain had no need to justify the weakened amendment because the press did not characterize his actions as a major concession.
[edit] Discussion Questions
Does Congress actually have an oversight role in preventing human rights abuses by American forces, and if so is it effective?
What is the role of the press in this process?
Is the press too reliant on Congress for these types of stories? Do reporters index their coverage to what politicians are talking about?
As a key participant in the congressional hearing process, does the press have a responsibility to continue covering issues brought up in hearings until there is a resolution? Or is the job of the press merely to report what Congress is doing?
What guides Congressional human rights decisions- politics or morals?
Should the press cover the political calculations involved in these decisions? What about the press critics that complain coverage is too focused on political dealings and not the actual policy?
Why was the detainee torture amendment deal portrayed as a win for Senator McCain by the press?
Is there a scoop or skip mentality among reporters? Why wasn't the signing statement covered more extensively?
[edit] The Army Field Manual on Interrogations
FM 34-52: Published in 1992, this is the version that McCain was advocating.
FM 2-22.3 (Human Intelligence Collector Operations): Published in September 2006, this replaced FM 34-52.
[edit] Video of a Congressional Hearing
[edit] Links to Coverage
Here is an article on the McCain Detainee Amendment deal, and the Graham/Levin amendment.
President Bush’s use of signing statements to interpret the law.
