REVIEW & OUTLOOK
An Antiterror Victory
The agreement on interrogations is a big favor for future Presidents.
The details of this week's compromise on detainee treatment between the White House and a small group of Senators led by John McCain are complicated. But the upshot of the agreement is simple and welcome: Aggressive CIA interrogations of such high-level al Qaeda prisoners as Khalid Sheikh Mohammed will be able to continue.
The CIA program was thrown into legal limbo by the Supreme Court's June ruling in Hamdan v. Rumsfeld, which said that Common Article 3 of the Geneva Conventions applies to our conflict with al Qaeda. It was a bad ruling, since Article 3 is intended to apply to civil wars. But its vague prohibitions against "humiliating" and "degrading" treatment nonetheless became the law of the land, exposing CIA interrogators to potential legal jeopardy for conduct as benign as using women to question Muslim detainees.
So the White House went to Congress asking, among other things, for help in clarifying what terms like "humiliating" and "degrading" actually mean. Senator McCain and his allies objected that this would be tantamount to "rewriting" the Geneva Conventions. But their objection wasn't very convincing, since every country in the world already interprets Article 3 and somebody in the U.S. has to do so in real-world situations; legal clarity is better than leaving that job to activist judges and lawyers. In the end, the Senators came most of the way toward the White House position.
Congress will specify what it considers "grave" breaches of Geneva--such as torture and cruel and inhuman treatment. But it will be up to the Executive Branch--with Congress's advance blessing--to go ahead and issue a public Executive Order defining "non-grave" breaches. This isn't exactly the full-throated Congressional endorsement that CIA interrogators ought to be able to expect. But it is still an unprecedented acknowledgement that some forms of aggressive interrogation are both necessary and permissible in the war on terror.
To be more specific, it's a fair bet that waterboarding--or simulated drowning, the most controversial of the CIA's reported interrogation techniques--will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster. This is not about "torture" or even "abuse," as some Administration critics dishonestly charge, but about being able to make life uncomfortable for al Qaeda prisoners who have been trained to resist milder forms of interrogation.
We're glad Mr. McCain came around to blessing a deal that will allow interrogations to continue. But we can't say his behavior in this affair has been a profile in political courage. Since the Abu Ghraib scandal he's been vaguely and irresponsibly suggesting that the CIA was engaging in unconscionable behavior. But when offered a chance to be specific about which interrogation techniques he really rejects, he punted the ball back to the White House.
Much the same can be said about many of Mr. McCain's colleagues, who have been demanding for decades that Congress be consulted on an ever-expanding range of defense and foreign-policy issues, only to run at the first hint of controversy. Their behavior shows once again why the Founders were right to vest the majority of war-fighting powers with the executive branch.
So it will soon be up to the White House to follow through and flesh out the legal details. This won't be a politically easy task, given the way such fine lawyers as Jay Bybee and John Yoo have been slimed as "pro-torture" for grappling with these issues in the past. The ACLU and media liberals are already attacking the deal and will look for ways to block it. But President Bush understands the need for legal clarity, and we trust he'll see that the job gets done.
This will be a service to the American public and to future Presidents of both parties--perhaps even to Mr. McCain. No matter their rhetoric now, they will surely be glad to have aggressive interrogations as one antiterror tool.
