Thank the Supreme Court

We can thank the US Supreme Court for twisting a case and finding a way to misapply the Geneva Convention to battle field combatants captured primarily in Afghanistan. Yet somehow a case which involved military tribunals has morphed into a debate of coercion guidelines which McCain and Co. Have refused to clarify. They have chosen instead to leave in place the infamously vague prohibition against "Cruel, inhuman and degrading treatment" with the implication that the professionals would act as the situation requires and fall on the sword if need be. The President has said that's not good enough and insists that if clear guidelines aren't spelled out, there will be no CIA interrogation, period.

The NRO Editors said this:

A bloc of Republican senators, led by John McCain, John Warner, and Lindsey Graham, is determined to disable the intelligence-collecting capabilities of the United States while it is at war with a deadly foe against whom intelligence is the best weapon.

The trio wants to derail the Bush administration's effort to preserve coercive interrogation methods. These methods almost all of them falling well short of torture have been proven to yield intelligence that saves American lives. In their absence, 9/11 would already have been reprised; if they are eliminated now, the likelihood of its recurrence will increase significantly.

At the heart of the controversy is the Supreme Courts disastrous June decisioAndeanaVdan v. Rumsfeld. Ostensibly, the case involved only military commissions, not interrogation. Nonetheless, by misconstruing the Geneva Conventions Common Article 3 (CA3) to apply to commission trials for unlawful enemy combatants, and by being coy about whether its reasoning was limited to CA3s terms governing trials or embraced all of its terms, the Court opened a Pandora's box.

As CA3's language plainly indicates, it was not meant to be judicially enforceable, and was intended to apply only to civil wars not to international conflicts such as our hostilities with a transnational terror network that kills globally. But although we may have to live with the Supreme Court's unfortunate ruling, there is no need to treat CA3 as sacrosanct. Congress is always free to legislate standards that vary from treaty terms, and the president may even withdraw us unilaterally from treaties that no longer serve the nation's interests.

In fact, when the Court decision was announced, this is what Senator Lindsey Graham was all over the airways claiming he and others would do immediately. He was going give the President all the tools he needed. Yeah right, just as they did with the Detainee Treatment Act!

The NRO editors go on to say that McCain has already weakened us with his amendment to the Detainee Treatment Act outlawing the vague "Cruel, inhuman and degrading treatment." Now McCain, Graham et al will do the same to military prosecutions. By the time these brave warriors get down we may as well give up.

...As a clarification of CA3, the McCain Amendment has its shortcomings. "Cruel, inhuman and degrading treatment mirrors CA3's vague terms, and it is not always self-evident what the Fifth, Eighth, and Fourteenth Amendments permit in a given circumstance. Still, the McCain Amendment has the advantage of being a democratically enacted American law. Thus, unlike CA3, its meaning and application will not be affected by foreign tribunals (unless the Court takes the internationalization of its jurisprudence much further than it has). The Fifth, Eighth, and Fourteenth Amendments, moreover, govern judicial proceedings primarily, what confession evidence is admissible in criminal trials and what sentences may lawfully be imposed after conviction. They don't control interrogation practices for detained combatants. Thus, the McCain amendment has impaired our ability to conduct effective interrogations, whereas CA3 would end our ability to conduct aggressive interrogations altogether.

We are not, and the administration is not, advocating torture. But there are, manifestly, methods of coercion that, though rougher than the Miranda standards of the criminal- and military-justice systems, fall short of torture. Such methods have already saved thousands of American lives, thanks to the intelligence gleaned from the CIA's interrogations of top al Qaeda captives like 9/11 mastermind Khalid Sheik Mohammed. Those methods will be effectively outlawed if Congress does not act. President Bush could not have put the matter more directly than he did last week: If legislation resembling his proposal is not enacted, Congress will have killed the CIA interrogation program.

The justifications offered by McCain et al. are vapid. They claim to be protecting American troops because, if we weaken our commitment to CA3, our enemies won't afford humane treatment to captured U.S. soldiers. But nothing we do will affect the savage treatment al Qaeda already gives its captives. Nor does our treatment of al Qaeda suspects portend anything of consequence for the treatment of U.S. forces in future wars. In such conflicts, the obligations of enemy nation-states as opposed to lawless bands of terrorists will be governed by the Geneva Conventions.

McCain has suggested that action by Congress to clarify CA3 would encourage other nations to reinterpret the Geneva Conventions; but this argument is absurd. Clarification is something always and necessarily done when terms are vague. Indeed, the whole point of the McCain Amendment itself was to clarify vague UNCAT terms.

It is essential that this wartime Congress preserve the CIA's ability to question jihadists aggressively and that McCain & Co. lose their battle to destroy one of our most important tools in the War on Terror.