With all the coverage about the McCain Amendment, has anyone bothered to read the text? The news media only describe it as outlawing torture. The actual bill outlaws “cruel, inhuman, or degrading treatment or punishment,” which is a good deal broader. In fact, here is how the bill defines it:
(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.
Leaving aside the UN convention for the moment, the Eighth Amendment is enough to seriously hamper the treatment of terrorist prisoners. Domestic interpretations of the Eighth Amendment have led to the release of convicted prisoners and those held for bail because of overcrowded conditions. For example, the old Charles Street Jail in Boston was condemned and converted to private housing because of successful legal action citing the Eighth Amendment. Inadequate toilet facilities, insufficient access to mental and physical health treatment, and solitary confinement have been found to be violations of Eighth Amendment rights. Boston Review has a very good overview of Eighth Amendment issues by Joan Dayan. The McCain Amendment bestows the same rights on terror suspects held anywhere by the US. Also, by granting these rights with reference to the US Constitution, it will be impossible to exclude lawsuits by detainees from the US court system. Brace yourselves for a Ramsey Clark extravaganza.