Since Sept. 11, the Bush administration has carefully constructed a legal no-man's land around the various issues relating to captured terrorist suspects. Arguing that the old laws of war don't apply to the war on terrorism, it has demanded maximum discretion in devising new ways to deal with the issues of detainee confinement, interrogation, and legal status. But unchecked power and the absence of law inevitably invite abuse: The crimes of Abu Ghraib and other detention centers in Iraq and Afghanistan, and the controversy over Guantanamo Bay, are the logical result of these extralegal arrangements. These lapses have eroded our moral standing in the world, and given the jihadists a propaganda windfall.
Recently congressional leaders have begun to step into the vacuum of administration leadership on these issues. Sen. John McCain (R-Ariz.) -- a man with no small measure of credibility on the issue of prisoner treatment -- raised the White House's ire last week by proposing an amendment to the 2006 defense authorization bill that would create a single set of rules for the treatment of enemy detainees. McCain's efforts should reinforce the good work of Rep. Adam Schiff (D-Calif.), who introduced a bill in June which seeks to regularize the legal status of enemy combatants (see Idea of the Week: Bring Gitmo Under the Rule of Law,)
Transnational terrorism represents a new form of conflict that may well require new rules and codes of conduct. Instead of new rules, however, the Bush administration seems to prefer no rules. The White House opposes McCain's amendment as an unacceptable infringement on executive powers in wartime. And it's clear that the administration isn't simply asking for temporary latitude to deal with a crisis. Almost four years after Sept. 11, it still jealously guards its carte-blanche power over detainees, and resists new rules or oversight.
This must change, for two reasons. First, the administration has shown that it can't be trusted to wield this power wisely. While there's no "smoking gun" link from the White House decisions about interrogation to the night shift at Abu Ghraib, there's a reasonably clear causal chain: After Sept. 11, the administration issued a series of legal memoranda that eviscerated the legal restraints on detainee treatment and torture, allowing harsh measures to be used at Guantanamo Bay. Then as the Iraqi insurgency gained strength, the no-holds-barred atmosphere quickly traveled from Guantanamo Bay to Iraq. A key event in this process seems to have been when Major Gen. Geoffrey Miller was dispatched to Iraq, in August 2003, with a green light to "Gitmo-ize" Abu Ghraib. The infamous photographs emerged several months later, in the spring of 2004.
The second reason for change is that giving the administration "temporary" emergency powers won't work, because it's clear that this is no short-term emergency. The fight against jihadist terrorism is primarily an ideological contest that will not end, World War II-style, with decisive battlefield victories. It will be more like the Cold War -- a long struggle with no obvious or predictable ending.
The United States can't simply make up the rules as we go along. Sen. McCain's proposal would make the Army Field Manual on Intelligence Interrogation the single standard for interrogation of military detainees. The measure would also end the practice of keeping unrecorded, unmonitored "ghost detainees" -- all prisoners controlled by the Department of Defense would have to be registered with the International Committee of the Red Cross. Another McCain amendment would ban "cruel, inhuman, or degrading treatment" of detainees.
This kind of clear and sensible framework for detainee treatment is a badly needed change to our policy in the war on terror. It would end the confusion within the military about what methods of interrogation are and are not permissible. This atmosphere of confusion and mixed messages, numerous reports have shown, was a major factor in creating the anarchic conditions at Abu Ghraib. A congressionally-mandated standard would also bring the issue of detainee treatment back into the realm of law, and reassert a needed institutional check on executive power.
In fact, McCain's reforms may not be enough. While his amendment covers only Department of Defense detainees, it's becoming clear that intelligence agencies have been major players in the prisoner abuse scandals. Members of the congressional intelligence committees should follow McCain's lead, by stepping up their oversight of the CIA and other intelligence agencies' detention practices, and proposing legislation if needed.
There are both moral and strategic reasons to reform the current system. Above all, most Americans felt revulsion and shame upon seeing the kind of sadistic practices used by the Abu Ghraib guards, and would like to see a serious effort to address the problem. These kinds of abuses are also profoundly damaging to America's moral authority in the world. Our ability to promote democracy and the rule of law, and protest human rights abuses in other countries, has been seriously compromised by these cases. Moreover, it's widely understood among interrogation experts that torture produces bad intelligence, because subjects will tell their captors anything, true or not, just to stop the abuse.
Critics will no doubt argue that putting limits on interrogation will constrain the military's ability to elicit urgent and actionable intelligence from captured terrorists. That may be so, some small percentage of the time. But as Sen. McCain argues, the Army Field Manual has served as a reliable and effective guide to interrogation for America's wars so far, and it's currently being updated to reflect the needs of the war on terrorism.
There is room for debate about what specific interrogation techniques should be allowed in different cases. But what is most important is that there are clear and firm guidelines, subject to democratic oversight. The McCain framework accomplishes this, while also maintaining some flexibility: If the Department of Defense wants to introduce new tactics, they must present them to the relevant congressional committees with 30 days advance notice.
Nonetheless, Vice President Cheney has held two meetings to pressure the amendment's GOP supporters, and the White House has even threatened to veto the defense operations bill to which the amendment is attached. Late last week, Senate Majority Leader Bill Frist (R-Tenn.) pulled the defense bill from the floor to take up the evidently more pressing matter of gun liability lawsuits. Strong administration opposition should not be surprising. After all, supporting the McCain amendment would involve a number of things anathema to this White House: admitting mistakes, changing course, sharing power, and relaxing their obsession with secrecy.
Progressives ought to rally behind Sen. McCain's sensible attempt to align U.S. treatment of terrorist suspects and detainees with basic American values. It's long past time to bring the issue of detainee treatment out of the White House's legal black hole, and into the realm of the rule of law.
