Marty Lederman and CT's Henry Farrell are putting out the alarm over Senator Ted Stevens' attempted "augmentation" of the McCain Amendment, concerning US military and government policy on the legality of torture. featuring a carve-out for the CIA.

A recent Congressional Quarterly article, reprinted here, reports Stevens -- who would "lead the Senate's conferees" -- as saying that "he can support McCain's language if it's augmented with guidance that enables certain classified interrogations to proceed under different terms." "'I'm talking about people who aren't in uniform, may or may not be citizens of the United States, but are working for us in very difficult circumstances,' Stevens said. 'And sometimes interrogation and intimidation is part of the system.'"

What this barely veiled statement means is that Senator Stevens will support inclusion of the McCain Amendment in the final bill only once it has been "augmented" to exempt the CIA from the prohibition on cruel, inhuman and degrading treatment. (Stevens's reference to persons who "may not be citizens of the United States, but are working for us" suggests that he also intends to include a carve-out for foreign nationals acting as agents of the CIA, such as the team of the CIA-sponsored Iraqi paramilitary squads code-named Scorpions.) If Stevens (read: Cheney) is successful in this endeavor, and if the Congress enacts the Amendment as so limited, it will be a major step backwards from where the law currently stands. This can't be overemphasized: If Stevens is successful at adding his seemingly innocuous "augment[ation]," it would make the law worse than it currently is.

Those wishing to learn all the details of why this is so are encouraged to read my previous posts (particularly those of January 8, 12, 18 and 25, and May 11) about how the Administration has construed numerous federal laws to make certain that the CIA is permitted to engage in cruel, inhuman and degrading treatment -- i.e., to engage in all forms of coercive interrogation short of the small category of conduct denominated "torture." Here's a quick synposis of why the Stevens "CIA carve-out" would make matters worse, the basic gist of which is this: Although the McCain Amendment would helpfully clarify and reaffirm some of the law applicable to military interrogations, it would not impose any substantive limitations on the Armed Forces that are not already in current law. The McCain Amendment would, however, emphatically reject the Administration's view that the CIA may engage in cruel, inhuman and degrading treatment in certain locations outside the U.S. -- a very significant development, but one that the Stevens "augmentation" would eviscerate.

Farrell goes on to pound his fist into the table: "It’s quite disgusting that the US mainstream press isn’t paying any real attention to what’s happening here. The US is on the verge of a momentous choice, between turning away (at least in part) from some of the vicious abuses of the last couple of years, or giving them the green flag. It shouldn’t be left up to a blogging law professor to tell us what’s going on."

For what it's worth, Andrew Sullivan railed against this measure on Real Time with Bill Maher. But, neither that cable show, nor Sullivan, a Republican blogger and currently an editor at TNR, are mainstream.

Lederman also lists scores of links related to this issue.

For those who don't know how to contact a US Congressional official, click here.

Cross-Posted at Barbarian Envoy