Remember when Bush declared, "We do not torture?" It's easy to respond, "Bush was lying to our faces." But Marcy Wheeler once again proves she's smarter than the rest of us by applying the twisted logic of John Yoo's memos to help us understand Bush's legal theory:

Bush does not say, "torture is illegal, but we do not torture, therefore we are working with the law." He flips the whole question around, as Yoo did. He basically states that anything the executive does to fulfill its obligation to protect the American people is--because it is done in the name of protecting the American people--within the law. The rationale for these activities--protecting the American people--and not the nature of the activities themselves, is what makes them legal, according to Bush.

To borrow a stupid Republican phrase, it's the logic of the "Daddy State" - whatever Daddy does is OK because Daddy is protecting us. It's really that simple for simple-minded Bush.

Now that we understand Bush's theory of torture, how do we understand that of his chosen successor, John McCain? As a torture victim, McCain likes to present himself as a firm opponent of torture. But the opposite is true, as Glenn Greenwald writes:

He holds himself out as a principled torture opponent but is, in fact, the single greatest enabler of legalizing torture in this country, from his 2005 bill which exempted the CIA from torture prohibitions to his 2006 leadership in enacting the Military Commissions Act to his opposition this year to the waterboard ban."

So how can he pretend to oppose torture while doing everything he can to enable it? By drawing his line between legal and illegal torture not on the basis of the act itself, but instead on the nationality of its victim. Here's what he told the AP today when asked about torturing detainees:

I’ve made it very clear, I’ve made it very clear in my statements and in my support of the Detainee Treatment Act, the Geneva Conventions, etc., that there may be some additional techniques to be used, but none of those would violate the Geneva Conventions, the Detainee Treatment Act… And we cannot ever, in my view, torture any American, that includes waterboarding.

McCain refuses to say that the act - waterboarding - is torture, regardless of the nationality of the victim. Instead, he only clearly opposes waterboarding when used against Americans. 

I guess that's what makes him a "maverick."

From a legal perspective, McCain's claim does not seem to be identical to Bush's. Bush's theory allows him to torture anyone - foreign or American - if it will protect America in his view, while McCain's theory draws a line against torturing Americans.

If pressed, McCain would have to justify this distinction in one of these ways:

1. There are legal limits to what a President can do to protect the country, as established by the Constitution and law (including Youngstown Steel and U.S. v. Lee)
2. Treaties and laws against torture do not protect "terrorists" or "enemy combatants," only uniformed military personnel and civilians.

These are not mutually exclusive, and it would be fascinating to know which position he takes. Perhaps someone can ask him?

Update 1: dday doesn't see much point in trying to uncover McCain's core legal theory because he's just lying like Bush:

The "American" slip-up may have been a slip-up from our doddering GOP candidate. But the weasel language of "there may be some additional techniques to be used," there, my friends, lies the rub. Considering that McCain already voted against banning the CIA from using waterboarding, which he very specifically describes as torture, then that must be one of those additional techniques. And I'm guessing they wouldn't violate those international agreements and American laws because... the President says so.

McCain is essentially setting out exactly the same position as the President has - forcefully stating that we do not torture in public, while authorizing and directing torture techniques in private, and finding lackeys to write legal opinions indemnifying the conduct. The consequences of those techniques has been nothing short of murder, dozens of homicides of prisoners while in US custody...

This is, after all, typical McCain. He says that US troops require significant educational benefits but won't sign on to support a 21st-century GI Bill. He attacks Democratic groups that are "funded by George Soros" and has taken hundreds of thousands from Soros himself. He promises "straight talk" and gets kicked off the Project Vote Smart board for refusing to answer the questions in their "Political Courage Test." He calls himself a public financing champion and attacks Barack Obama for possibly opting out of the Presidential public financing system, while he illegally spends money for the primary despite not being taken out of the public financing system by the FEC. And on and on.

The press loves McCain (for the honor of speaking to him, they handed him the gift of coffee and donuts today) so this massive hedge on torture, combined with recent votes allowing the CIA to continue to engage in it, will probably go unnoticed. The elephant in the room, George Bush's admission of guilt in violating domestic and international laws regarding toture, has gone almost completely unnoticed, after all. 

I always love dday, but I think Marcy is right: there is a legal theory that Bush and McCain apply to justify torture, and we should force it out of the legal shadows and into the bright light of democracy.