REVIEW & OUTLOOK
Geneva Contention
Does John McCain favor the CIA interrogations or not?
The media are concentrating on the politics of the intra-Republican fight over military tribunals and detainee treatment, which last week saw the Senate Armed Services Committee move a bill substantially different from what the White House wants. But the stakes here are far more serious: To wit, if Senators John McCain, John Warner, Lindsey Graham and Susan Collins get their way, aggressive interrogation as an antiterror intelligence tool will effectively end.
Thanks to last year's McCain Amendment, the Defense Department is already required to give detainees in its custody better treatment than American police must give common criminals. The new Army Field Manual doesn't even allow for good cop/bad cop routines against Iraqi and Afghan insurgents if threats of any kind are conveyed or implied. This restraint is not required by the Geneva Conventions, which clearly distinguish between lawful and unlawful combatants--the latter being deemed to have fewer rights because they have violated the rules of war by fighting out of uniform or targeting civilians.
Now the four GOP Senators and most Democrats are working to put CIA interrogators under similarly restrictive rules. If they get their way, they will make it impossible for any government agency to squeeze the next al Qaeda terrorist who may have information about a ticking bomb in an American city.
At issue now is something called Common Article 3 of the Geneva Conventions, which the Supreme Court ruled this summer in Hamdan v. Rumsfeld applies to our conflict with al Qaeda. This was a dreadful decision, since Article 3 is intended to be applied to an "armed conflict not of an international character"--i.e., a civil war. But it is now the law, and the question going forward is how to interpret Article 3's ambiguous prohibition against "outrages upon personal dignity, in particular humiliating and degrading treatment."
That clause can mean just about anything depending on the eye of the beholder. To pick one example, U.S. human rights groups have alleged that using women to question Islamist prisoners is "humiliating and degrading." But for the U.S. to bar women interrogators might well violate our own civil rights laws. What's more, the definition of an "outrage" is context-dependent. What's outrageous when dealing with the likes of 9/11 mastermind Khalid Sheikh Mohammed, or a terrorist who might know about imminent plots, is clearly different than what's outrageous when dealing with a lawful combatant or prisoner of war.
The Bush Administration has proposed to deal with this ambiguity by laying down a clear set of rules specifying conduct it considers acceptable and unacceptable under Article 3. We think it is perfectly legitimate to interpret Article 3, as the Administration does, in a way that permits aggressive interrogation of some detainees. Some people may disagree. But it is wrong to assert that merely attempting to interpret "outrageous," "humiliating" and "degrading" is to somehow rewrite the Geneva Conventions, as the critics charge.
Paradoxically, the GOP Senators claim the Administration has all the legal authority it needs to maintain the CIA interrogation program, which deals with the worst al Qaeda captives such as KSM. Even though the War Crimes Act as amended in 1997 makes it a crime to violate Common Article 3, the Senators say the Administration can proceed based on an opinion it can seek from the Department of Justice defining what Common Article 3 means.
But this is naive, if not disingenuous. Somebody is going to have to interpret what Article 3 requires in real world situations, and we'd rather see it done by open and honest Congressional debate than by secret Justice Department memos--or, worse, leaving that job to interrogators in the field on a case-by-case basis. In Hamdan, the Supreme Court showed little deference to the executive branch but it did invite Congress to play a role. Yet now these Members of Congress want to abdicate that role and tell the Administration it is on its own in interpreting Common Article 3.
As soon as some Justice lawyer writes an opinion on Geneva allowing "stress" interrogations (such as exposure to hot or cold, or sleep deprivation), it will be denounced by Europeans and liberal activists who have a different interpretation. A future President could also rewrite that Justice opinion, exposing CIA agents to ex post facto liability. And would the same Senators now saying that the CIA interrogation program is legal stand up and defend it under media and political pressure? Don't count on it.
Amid these vagaries, CIA Director Michael Hayden is absolutely right to say that, without clear rules from Congress, he cannot put his agents at political and legal risk. He will have to shut down an interrogation program that the President says has yielded crucial intelligence that has saved American lives. CIA agents "don't want to be tried as war criminals," Mr. Bush said in his press conference Friday. "They expect our government to give them clarity about what is right and what is wrong." We'd add that as patriots they also want to be proud of their duty and know that the Congress supports it.
You'd think the critics would at least engage on these issues, but instead they are trying to play a political trump that portrays the Administration as moral rogues. Former Secretary of State Colin Powell put it most demagogically when he claimed the Bush Administration was trying to redefine Geneva and would lead others to "doubt the moral basis of our fight against terrorism" and "put our own troops at risk."
In fact, our captured troops wearing the uniform would be lawful combatants entitled as POWs to the full protection of the Geneva Conventions, not just Common Article 3. In any case, the al Qaeda terrorists we are fighting care nothing for Geneva as they mutilate and behead the Americans they capture. The Administration is making a good faith attempt to translate vague terms of international law into domestic statutory obligations. Mr. Powell's suggestion that the effort in any way compares with the habits of our enemies must be deeply offensive to his former colleagues.
Mr. McCain also didn't do his argument any favors when he accused General Hayden of "trying to protect his reputation at the risk of America's reputation." Doesn't the Senator recognize the possibility that the CIA Director is actually concerned about protecting America? We're willing to accept Mr. McCain's own sincerity on the issue. We merely disagree with him and think that leaving Article 3 undefined will mean an end to the kind of interrogation that, against certain terrorists, could save American lives.
As a political matter, however, Mr. McCain seems to want it both ways: On the one hand, he claims the Administration has all the legal rights it needs to maintain the CIA interrogation program. So he can deny responsibility if the program is shut down. On the other hand, he won't speak up and support such interrogations, and he continues to imply that the Administration favors "torture" and illegal behavior even as he knows the CIA is demanding no such thing.
The good news is the Senate is not the last word on this debate. The House is likely to endorse the Administration's preferred language this week, and a bill that emerges from conference may be a compromise the CIA can live with. The government's ability to protect Americans using the vital tool of interrogation depends on it.
