At last. Five years after September 11, and at least four years too late, Congress has begun doing its job, which is to create durable and accountable legal structures for the war against jihadism. The Long National Negligence, a period of startling congressional dereliction of duty, is over.
This month, as Congress debated laws governing the treatment of terrorism detainees, President Bush found himself maneuvering to keep his officials from being brought up on war-crimes charges—not in some international kangaroo court but in an American one, under America's very own War Crimes Act. That Bush got himself into this position more or less on purpose—by refusing the opportunity that a sympathetic Congress and an alarmed public provided him to write sensible, sustainable laws on detention and interrogation—may go down as one of the most inexplicable and self-defeating displays of executive pigheadedness since Woodrow Wilson defeated his own League of Nations.
Bush finally moved because his hand was forced. In its June Hamdan v. Rumsfeld decision, the Supreme Court stunned the administration by declaring that the Geneva Conventions, which forbid "outrages upon personal dignity, in particular humiliating and degrading treatment," apply to all detainees in U.S. custody. That immediately cast into legal limbo a CIA program that, until a few weeks ago, secretly held and interrogated high-value terrorism suspects. To resuscitate the program, Bush needs Congress to change the law.
Torture is illegal under both international and U.S. law. Bush says he did not and will not authorize it. The question is how to handle what Bush recently called an "alternative set of procedures": rough or humiliating interrogation practices that exceed what is allowed under strict interpretations of the Geneva Conventions but that stop short of torture as conventionally defined. News reports, not officially confirmed, say that the CIA has subjected detainees to so-called stress positions (such as standing for long periods), cold and hot conditions, slapping, bombardment with light and sound, sleep deprivation and manipulation, and "water-boarding" (simulated drowning, which the CIA has reportedly discontinued).
Bush wants legal leeway to use such measures; three key Republican senators want somewhat tighter restrictions. "It is one of those rare congressional moments when the policy is as monumental as the politics," wrote Carl Hulse in The New York Times last week.
Actually, not. The differences between the proposals were fairly important, but what was really momentous was their similarity. On several fundamental points, a consensus has taken shape.
First, torture should be legally off-limits, period, regardless of circumstances. Hardly anyone says otherwise.
Second, some kind of special and secret system for detaining and interrogating high-value terrorism suspects is justifiable and necessary. In a statement on September 6, Sen. Jay Rockefeller IV of West Virginia, the Democratic vice chairman of the Senate Intelligence Committee, said, "I support the continuation of a CIA detention and interrogation program, but it must be operated in a lawful manner." No prominent Democrat, or Republican, was heard to disagree.
Finally, general agreement exists that the central purpose of a detention and interrogation system is to prevent terrorism, not to prevent torture. That point may sound trivial, but it is not: Many human-rights advocates believe that the foremost responsibility of any detention system is to treat detainees humanely. On Capitol Hill, both parties reject that view. In its way, this is a seminal decision.
Is it the right decision? Anyone who tells you the choice is easy isn't thinking seriously. To claim, as some people do, that coercive interrogation doesn't work contradicts common sense, as well as the Bush administration's unqualified insistence that the CIA's "alternative procedures" have already thwarted terrorist attacks and saved lives. "Many interrogators," reported the Los Angeles Times this month, "privately acknowledge that coercive methods that stop short of torture have proven effective in Afghanistan and Iraq." I believe them.
To use coercive interrogation as part of everyday intelligence-gathering would certainly be unacceptable. Even the occasional and careful use of rough methods risks tarnishing America's image and diminishing the country's power to lead by example. On the other hand, if making a Qaeda leader stand naked, depriving him of sleep, or flashing bright lights at him could prevent a major terrorist attack, it would seem immoral to put those methods off-limits, and perverse to call them war crimes. Surely the rights of potential terrorism victims count no less than the rights of detainees.
In any case, if a law bans the use of "alternative methods" even in the direst circumstances, it will succeed only in driving those methods underground. "Any president, Democrat or Republican, faced with really frightening, bone-chilling threat reports and credible claims that he can stop bad things from happening, is going to be very hard-pressed not to push his powers to the full extent of the law," says Jack Goldsmith, a professor at Harvard Law School and a former official in the Bush Justice Department. Responsible law-making respects not just human rights but also human realities.
My view is worth no more than yours or anyone else's, but here it is: The law should leave room for exceptional recourse to "alternative" interrogation techniques, while making sure that their use is genuinely exceptional. On that score, both the Bush bill and the Senate alternative improved on the post-9/11 Bush regime, under which the president made up the law as he went along and no one could say boo about it; and both improved on the Supreme Court's Hamdan regime, under which almost any sort of rough interrogation, however necessary, might be judged a war crime.
Both bills, though, made the same mistake: While concerning themselves quite properly with legality, they omitted accountability.
Years ago, Congress grew unhappy with the CIA's habit of secretly supporting coups and assassinations. But Congress was smart enough to know that covert operations were a fact of life and that politicians, not judges and juries, are best equipped to evaluate them. So it demanded accountability by requiring that covert operations be disclosed to Congress. The president must make a written "finding" that explains to the Intelligence committees why a covert operation is necessary, what he proposes to do, and who will do it-in advance of the operation except under "extraordinary circumstances," and promptly even then.
The result is that administrations think twice about any operation they would have trouble defending on Capitol Hill. Congress has both the opportunity and the responsibility to squawk if the CIA goes too far. Not least important, a congressional sign-off ensures that the CIA is not hung out to dry if an operation fails or proves unpopular.
The system works, and, with some adaptations, would work just as well for coercive interrogation. If the need to water-board a senior Qaeda operative is compelling, the president should be willing to make a finding that tells the Intelligence committees what the government needs to do and why. If the committees object, chances are the public would, too.
The administration says, "The chairs, ranking members, and majority and minority staff directors of the Intelligence committees were fully briefed on the interrogation procedures" as the CIA created its system in 2002. A Senate staffer confirmed that the program "was properly notified to the committee," though Wendy Morigi, a spokeswoman for Rockefeller, said that he "was denied documents and information that we needed to fully evaluate the program."
Voluntary blanket disclosure is good, but it is no substitute for legal assurance that the president and Congress know and approve of every particular case of coercion. To keep everyone honest, I would add another layer of accountability: Every so often, the government would report to the public on how many people it roughed up over a given period, in what fashion, and why. Even with sensitive particulars redacted, a general description would force politicians to confront the public. More important, it would force the public to confront its conscience.
Coercive interrogation is a form of deliberate abuse that treats human beings not as ends in themselves but as means to an end. For a democracy founded on the promise of equal and unalienable human rights, there is no graver compromise. If the country needs to make this compromise—as I and, apparently, most Americans think it does—it needs to look its behavior squarely in the eye.
© Copyright 2006 National Journal
Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.