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The Bush-Cheney Administration’s disregard of international law has tainted the United States’ reputation abroad. For example, the Iraq invasion; the detention facilities at Abu Ghraib, Bagram Air Base and Guant�namo Bay, Cuba; the so-called CIA black sites; and the “extraordinary rendition” of Muslim suspects to countries that torture have marked the United States as an international law violator, alienating our allies and probably further inflaming Muslim communities around the world against us. Would a John McCain presidency, however, greatly depart from the Bush administration’s often disrespectful approach to international law and to international institutions? Senator John McCain, R-Ariz., the presumed Republican presidential nominee, has been the most prominent Republican in Congress to criticize the administration’s use of torture and harsh interrogation techniques, techniques that most international lawyers agree violate the Geneva Conventions, the human rights conventions or both. He apparently supported the United States’ ratification of the Convention against Torture, the International Covenant on Civil and Political Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. He supports the ratification of the Convention on the Elimination of All Forms of Discrimination against Women. He is a strong supporter of the World Trade Organization. He supports the Ottawa Landmines Convention, which President Clinton refused to sign. McCain has favored ratification of the U.N. Convention on the Law of Sea, whose ratification is long overdue. (One conservative blogger, however, quotes McCain as reconsidering his position on this convention.) On the International Criminal Court, which President Bush “unsigned” and has vigorously fought against, the San Francisco Chronicle quotes McCain as saying, “I want us in the ICC, but I’m not satisfied that there are enough safeguards [for American personnel].” Although he voted against pursuing the Kyoto Protocol, he did introduce legislation to impose a modest cap on greenhouse gases. (However, he favors nuclear power generating plants.) At least one commentator has described McCain as an “Atlanticist,” meaning one who works well with the Europeans. List of negatives is long On the other hand, McCain strongly supported the invasion of Iraq even though there was little evidence that Saddam Hussein constituted a first-order threat to the United States or that Hussein had supported al-Queda or that the U.N. Security Council had authorized the invasion. Despite all his talk against torture and rough interrogations, McCain supported the 2006 Military Commissions Act. That act allows evidence from forced confessions and double or triple hearsay, limits the right to counsel, limits the right to appeal, strips the defendants of the right of habeas corpus, deprives defendants of a civil jury, takes away the courts’ power to rely on the Geneva Conventions and grants immunity to U.S. interrogators from war crimes. McCain’s Detainee Treatment Act (DTA), which purports to outlaw torture, also strips individuals imprisoned outside the United States of their right of habeas corpus in U.S. courts, replacing the writ with a paltry appellate procedure. Lastly, the DTA leaves an individual detainee who is subject to torture or cruel, inhuman or degrading treatment outside the United States without any legal remedy. Furthermore, McCain recently opposed a Senate bill that would require the CIA to follow the Army Field Manual, which prohibits torture and cruel, inhuman, and degrading treatment. (The manual expressly forbids conduct arguably not rising to the level of torture, including “sensory deprivation, inducing hypothermia or depriving the subject of food, water, or medical care.”) Although staunchly opposing waterboarding, McCain apparently favors giving the CIA a “freer hand” in carrying out interrogations. In addition, McCain has opposed current evolving trends in international law and practice. For example, he is a steadfast supporter of the death penalty. (The death penalty per se is not illegal under international law, but most countries, including nearly all of our allies, either formally have abolished it or have done so de facto). He also voted against an amendment that would require strict limits on the use of cluster bombs despite an international outcry against the broad use of this often indiscriminate weapon. He supported President Reagan’s apparent violation of the Antiballistic Missile Treaty with the so-called Star Wars/strategic defense initiative program. McCain favored George W. Bush’s withdrawal from that treaty and supported the United States’ invasion of Panama under the George H.W. Bush administration. Although he voted for the Strategic Arms Reduction Treaty and the Chemical Weapons Convention and has decried nuclear proliferation, he voted against the Comprehensive Nuclear Test Ban treaty. That treaty would have banned all testing of nuclear weapons whether in the atmosphere or underground. Certainly, McCain deserves credit for opposing the Bush-Cheney administration’s use of torture and cruel, inhuman, and degrading treatment. McCain has generally supported human rights treaties and international cooperation. Yet close examination reveals that on using armed force, his record does not differ that much from the current president’s. Even concerning his cherished opposition to the Bush-Cheney detainee treatment practices, McCain agreed to compromise measures that significantly weakened human rights protections. Consequently, McCain would restore a certain amount of international respect to the United States, but would appear to keep much of American exceptionalism intact. Thomas M. McDonnell is a professor of law at Pace Law School.

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