December 09, 2005,
John McCain is supposed to be a stand-up guy, but this time he isn't acting like one. He is, rather, leading a debate that will allow Congress to bask in the glow of "ending torture" without ever doing any difficult grappling with the questions raised by our interrogation policy. If Congress is going to insert itself into the executive branch's handling of illegal enemy combatants, it should do so using terms that are clear and meaningful. Instead, it is conveniently avoiding specifics, and an already confused debate is growing ever more confused witness the widespread disagreement over the meaning of Secretary of State Condoleezza Rice's statements in Europe this week.
The root of this confusion is the absence of an agreed-upon definition of terms. Everyone knows that "torture" is illegal, banned under the U.N. Convention Against Torture (CAT). The U.S. is a signatory to that treaty. The administration maintains that, as a matter of policy, it also applies CAT's other prohibition, against "cruel, inhuman, and degrading treatment" (CID), to its handling of detainees overseas.
So, what is torture? Under CAT and U.S. law, it is the infliction of "severe pain or suffering." Bush critics like to ignore the word "severe" and pretend that subjecting a detainee to any pain is torture. It is not. While most people instinctively know what they consider torture fingernails pulled out, electric shocks, beatings defining what rises to the level of cruel, inhuman, and degrading treatment is a trickier question.
That is all the more reason for Congress to define which practices it finds acceptable and which it doesn't. But all the McCain amendment does is apply the CID prohibition to our actions overseas, which the administration at least by its own lights is already doing. It also codifies the interrogation policies contained in the Army Field Manual. Those policies were geared to dealing with legitimate prisoners of war and, correctly, are tightly formulated to allow only such unaggressive methods as "psychological ploys" and "verbal trickery."
What, then, do McCain and his colleagues think of those methods that aren't included in the manual but don't necessarily constitute CID? That's the key question. Given the way the debate is now playing out, if McCain's amendment becomes law it will be interpreted as banning almost every coercive interrogation technique. In dealing with captured terrorists, we will then be able to apply only methods formulated to deal with conventional soldiers in a different sort of conflict than the one that faces us now. This is folly.
The most constructive path forward would be for Congress to put aside legalisms and empty phrases and work its way through interrogation practices, starting with the least controversial. Is dietary manipulation "cruel"? Are cold rooms? Is sensory deprivation? Is being made to stand for hours? How about an "attention grab," i.e., shaking a detainee? Sleep deprivation? A belly slap? We think these methods would all pass muster in any rational debate, provided they are applied within reason (there is a difference between standing for two hours and twenty hours).
Then Congress could make its way to the most aggressive techniques, such as water-boarding, which simulates drowning. It has reportedly been effective in breaking high-level al Qaeda detainees within seconds, but is a practice with which most people would be uncomfortable. It is at least close to the line of what constitutes torture, and is certainly "cruel" in almost every circumstance.
But circumstances matter. Even some of the most fervent backers of McCain, including McCain himself, say we should torture someone in a ticking-bomb scenario, where saving a U.S. city depended on doing so. Such scenarios are unlikely in the extreme, but there are other exceptional cases that are more probable: for instance, the capture of a top-level al Qaeda operative who may have knowledge of a coming attack or know the whereabouts of Osama bin Laden.
To deal with such cases, the president should be able to sign a finding on the model of a finding authorizing an assassination to use an extraordinary method like water-boarding. The definition of CID depends on context. While water-boarding may be unacceptably cruel if applied to 69,990 of the roughly 70,000 people we've detained since the war on terror began, there are perhaps ten top-level captives in whose cases water-boarding doesn't "shock the conscience," to employ the phrase often used in defining CID. Requiring presidential authorization in these cases would ensure accountability while shielding from criminal exposure the agent charged with obtaining information that could save lives.
All of this would amount to a three-tiered system. The Army Field Manual would govern how we handle most captives. More coercive techniques would be available for terrorists who aren't conventional POWs and might have important intelligence. Finally, the president could go even further in rare circumstances. This is a system that would be suited to the complex environment presented by the war on terror, one in which intelligence is paramount and not to be forfeited lightly. It would eliminate most of the ambiguity inherent in the current debate, and get Congress to stop carping from the sidelines and put itself on record endorsing a clear set of interrogation policies.
At the moment, such an outcome is unlikely, as Congress seems incapable of that most elemental act: stopping and thinking. That incapacity is why we got a Department of Homeland Security that is incoherent to this day, and a national intelligence director who contributes little more than another layer of bureaucracy. In fairness, there are House Republicans willing to follow the White House's lead if it can present a compelling, politically salable way to modify the McCain amendment. So far it hasn't. Pushing McCain to drop the airy bromides and get specific would be a start. But the administration has to act fast, since the House looks prepared to surrender to McCain imminently. For Congress, it is never too soon to do something we will all come to regret.