But while Bush, Cheney, and other administration officials chose not to engage, the debate developed by proxy, with the writer Charles Krauthammer, among others, insisting that the McCain standard was too stringent. And the administration’s backstage maneuvers were detailed in early November, when The Washington Post reported on page one that the vice president was waging an “intense and largely unpublicized campaign” against restrictions on detainee treatment and had lobbied senators to exempt the CIA from McCain’s amendment.
The White House began threatening to veto the measure, although the president wouldn’t comment publicly, and Scott McClellan, then White House spokesman, simply labeled the amendment “unnecessary and duplicative.” But forced into the open, few senators were willing take a stand for inhumane treatment, and McCain’s bill passed by the veto-proof margin of 90 to nine. (The exemption for the CIA was rejected, too.)
Faced with defeat, the president invited McCain to the White House, where Bush signed the measure and offered vague praise for the ban. “We’ve been happy to work with him to achieve a common objective,” he said.
The McCain vote, of course, garnered front-page coverage around the country and on the networks. “President Backs McCain on Abuse,” declared The New York Times. What was mostly missed, however, were two key facts. First, the amendment, worthy as it was, wasn’t as strong as advertised. It contained no enforcement clause: Soldiers or CIA agents couldn’t abuse prisoners, the bill stated, but it didn’t provide for any penalties if they did. The amendment, in other words, was mostly a statement of principle, without teeth.
What’s more, McCain’s amendment was undercut by another little-noticed amendment that was passed as part of the same defense appropriations bill. Sponsored by Senators Lindsey Graham, Carl Levin, and John Kyl, the amendment — which was combined with McCain’s measure to become the Detainee Treatment Act (DTA) — states that testimony gained through “coercion” can be used in military tribunals. Unlike the McCain amendment, which merely reaffirms existing laws, the Graham-Levin-Kyl measure muddies what had been clear waters. The amendment’s portion of the DTA also severely restricts detainees’ access to US courts and strips them of the right to habeas corpus. It limits detainee cases to a single hearing in front of an appeals court, at which detainees have no clear right to present the facts of their case.
Cheney and his allies “took their opponents to the cleaners,” Marty Lederman, a law professor at Georgetown who served in the Justice Department until 2002, wrote at the time on a blog called Balkanization. “The Graham amendments … are far more beneficial to their detention and interrogation policies than the McCain amendment is detrimental.”
But that’s not how the matter has played in the media. The triumph of the McCain amendment was a compelling story, a personality play in which the little-liked Cheney was brought to heel by the much-adored maverick senior senator from Arizona. The Graham-Levin-Kyl amendment — a legalistic, obscure, and at least nominally bipartisan effort — had no such drama. And it got no equivalent coverage. The morning after that amendment passed, only one major paper, The New York Times, gave it front-page treatment, and it simply wasn’t mentioned on the network news.
“I don’t think the media were connecting the dots,” says Marc Falkoff, a law professor at Northern Illinois University who represents seventeen Yemenis detained at Guantanamo. “They never realized” that the McCain bill “gave the detainees a right, but without a remedy.”
The undercutting pattern continued with the president’s “signing statement,” in which he asserted that he didn’t consider his administration to be bound by the McCain ban but instead would interpret it “in a manner consistent with the constitutional authority of the president.” With the statement’s practical implications unclear — Was the president reserving his right to ignore the ban? Was he giving fair warning of what he was already doing? — and the whole notion of signing statements a confusing, unfamiliar, and often headache-inducing legal topic, most news outlets, with the notable exception of The Boston Globe, ignored it. (Coverage of the signing statements did eventually pick up after bloggers and others harped on them.)