A bloc of Republican senators, led by John McCain, John Warner, and Lindsey Graham, is determined to disable the intelligence-collecting capabilities of the United States while it is at war with a deadly foe against whom intelligence is the best weapon.
The trio wants to derail the Bush administration’s effort to preserve coercive interrogation methods. These methods — almost all of them falling well short of torture — have been proven to yield intelligence that saves American lives. In their absence, 9/11 would already have been reprised; if they are eliminated now, the likelihood of its recurrence will increase significantly.
At the heart of the controversy is the Supreme Court’s disastrous June decision in Hamdan v. Rumsfeld. Ostensibly, the case involved only military commissions, not interrogation. Nonetheless, by misconstruing the Geneva Conventions’ Common Article 3 (CA3) to apply to commission trials for unlawful enemy combatants, and by being coy about whether its reasoning was limited to CA3’s terms governing trials or embraced all of its terms, the Court opened a Pandora’s box.
As CA3’s language plainly indicates, it was not meant to be judicially enforceable, and was intended to apply only to civil wars — not to international conflicts such as our hostilities with a transnational terror network that kills globally. But although we may have to live with the Supreme Court’s unfortunate ruling, there is no need to treat CA3 as sacrosanct. Congress is always free to legislate standards that vary from treaty terms, and the president may even withdraw us unilaterally from treaties that no longer serve the nation’s interests.
CA3’s sweep encompasses much more than legal proceedings. It provides, for example, that “persons taking no active part in the hostilities, including . . . those placed ‘hors de combat’ by . . . detention, or any other cause, shall in all circumstances be treated humanely.” Humane treatment is defined to require not only the obvious proscriptions of “murder of all kinds, mutilation, . . . and torture,” but also prohibitions of “cruel treatment,” “outrages upon personal dignity,” and “humiliating and degrading treatment.”
These latter terms are hopelessly subjective and open to a wide range of interpretations, including by foreign courts whose construction of international law are given “respectful consideration” by the Supreme Court in its Hamdan ruling. Consequently, if Congress abdicates its duty to clarify CA3’s terms, the safety of Americans may hinge on the meanderings of foreign and international tribunals that are notoriously nonchalant about — if not outright hostile to — American security interests.
Worse, CA3 is potentially paralyzing. Without action by Congress to state plainly what is and is not permissible, intelligence agents will have to fear being sued or prosecuted for war crimes just for doing their jobs. This is not a hypothetical concern; anxious agents are already buying litigation insurance. Soon, our efforts to cull intelligence from detainees will shut down entirely (that is, if they haven’t already).
President Bush has thus proposed clarifying CA3 by defining it as the functional equivalent of last year’s McCain Amendment. That legislation clarified the prohibitions against “cruel, inhuman and degrading treatment” in the U.N. Convention against Torture (UNCAT) by vesting alien enemy combatants detained outside the U.S. with Fifth, Eighth, and Fourteenth Amendment rights. Congress had resisted doing this when it ratified UNCAT in 1994, for the same prudent reasons that the Bush administration resisted the McCain Amendment right up to the moment when the president swallowed hard and capitulated.
As a “clarification” of CA3, the McCain Amendment has its shortcomings. “Cruel, inhuman and degrading treatment” mirrors CA3’s vague terms, and it is not always self-evident what the Fifth, Eighth, and Fourteenth Amendments permit in a given circumstance. Still, the McCain Amendment has the advantage of being a democratically enacted American law. Thus, unlike CA3, its meaning and application will not be affected by foreign tribunals (unless the Court takes the internationalization of its jurisprudence much further than it has). The Fifth, Eighth, and Fourteenth Amendments, moreover, govern judicial proceedings — primarily, what confession evidence is admissible in criminal trials and what sentences may lawfully be imposed after conviction. They don’t control interrogation practices for detained combatants. Thus, the McCain amendment has impaired our ability to conduct effective interrogations, whereas CA3 would end our ability to conduct aggressive interrogations altogether.
We are not, and the administration is not, advocating torture. But there are, manifestly, methods of coercion that, though rougher than the Miranda standards of the criminal- and military-justice systems, fall short of torture. Such methods have already saved thousands of American lives, thanks to the intelligence gleaned from the CIA’s interrogations of top al Qaeda captives like 9/11 mastermind Khalid Sheik Mohammed. Those methods will be effectively outlawed if Congress does not act. President Bush could not have put the matter more directly than he did last week: If legislation resembling his proposal is not enacted, Congress will have killed the CIA interrogation program.
The justifications offered by McCain et al. are vapid. They claim to be “protecting American troops” because, if we weaken our commitment to CA3, our enemies won’t afford humane treatment to captured U.S. soldiers. But nothing we do will affect the savage treatment al Qaeda already gives its captives. Nor does our treatment of al Qaeda suspects portend anything of consequence for the treatment of U.S. forces in future wars. In such conflicts, the obligations of enemy nation-states — as opposed to lawless bands of terrorists — will be governed by the Geneva Conventions.
McCain has suggested that action by Congress to clarify CA3 would encourage other nations to reinterpret the Geneva Conventions; but this argument is absurd. Clarification is something always and necessarily done when terms are vague. Indeed, the whole point of the McCain Amendment itself was to clarify vague UNCAT terms.
It is essential that this wartime Congress preserve the CIA’s ability to question jihadists aggressively — and that McCain & Co. lose their battle to destroy one of our most important tools in the War on Terror.
