In an important address on high-level detainees in the War on Terror, President Bush acknowledged what was a secret to no one: Since 9/11, the U.S. has held senior al Qaeda terrorists in CIA detention centers and subjected them to coercive interrogation techniques. They are among the worst of the worst: 9/11 masterminds Khalid Sheikh Mohammed and Ramzi bin al-Shibh, al Qaeda commander Abu Zubaidah, and eleven other jihadists with records that include the bombings of the U.S.S. Cole and the American embassies in Kenya and Tanzania. Civil-liberties extremists have already decried the CIA program under which these terrorists have been held and the interrogation techniques used against them. But the simple fact is that they are crucial to saving lives. That’s why the White House has proposed legislation to ensure that they continue — giving voters a chance, before the midterm elections, to see how serious their senators and congressmen are about keeping them safe.
According to the administration, the tactics used against the detainees were approved by the Justice Department before being employed, and were found to be consistent with both U.S. law and treaty obligations. They certainly do not rise to the level of torture. Do they constitute “outrages on personal dignity” and “humiliating and degrading treatment” — to use the language of the Geneva Conventions’ Common Article 3? These terms are so hopelessly vague that it’s impossible to determine exactly what they mean; but it’s clear that certain European courts and international tribunals construe them to prohibit the kind of treatment that the United States has given to senior al Qaeda terrorists.
In June, the Supreme Court’s Hamdan decision tried to force Common Article 3 on the U.S. government, for the benefit of those terrorists. This attempt was particularly outrageous given that there’s no good reason to think terrorists qualify for Common Article 3 protections in the first place. They are unlawful combatants; accordingly, both the Geneva Conventions’ own terms and the accepted laws of war exclude them from the protections given to captured POWs. Moreover, nothing in the U.S. Constitution requires that they be given such protections. (That’s largely why the Reagan administration prudently rejected the 1977 Protocol I to Geneva: It would have vested terrorists with rights reserved for honorable soldiers.) Given all this, does it makes sense to grant terrorists Geneva protections anyway — effectively ending the government’s ability to employ the techniques at work in the CIA detention program?
This is no longer an abstract question. Bush has given concrete details about how the program has kept us safe. To take one example: Al Qaeda was planning a monstrous follow-up to the 9/11 attacks, under the direction of Khalid Sheikh Mohammed. But interrogation after the capture of a bin Laden intimate led to the apprehension of Mohammed’s 9/11 sidekick, Ramzi bin al-Shibh; and the questioning of both terrorists then led to the capture of Mohammed before the attack could be carried out. More broadly, the program has resulted in, among other things, the revelation of plots to kill large numbers of Americans in domestic bombings; the identification of terrorist operatives dispatched to carry them out; the arrest of Riduan Isamuddin, a.k.a. Hambali, the Jemmah Islamia architect of the Bali bombings that killed 202 people; and the smashing of a 17-member Jemmah Islamia cell. The CIA’s interrogations have also exposed al Qaeda’s transportation channels and safe harbors, and compromised its communications. In short, they have probably saved thousands upon thousands of lives. To make sure they continue to do so, the president has proposed legislation that would do two things.
First, it would add congressional clarification to Hamdan’s imposition of Common Article 3 by bringing it in line with the McCain Amendment (which was codified in last year’s Detainee Treatment Act). To be sure, the McCain Amendment suffers from the same vagueness as Common Article 3. Torture was already against U.S. law; the effect of the amendment was to apply American constitutional protections (specifically, proscriptions against coercive interrogation and cruel and unusual punishments under the Fifth, Eighth, and Fourteenth Amendments) to alien enemy combatants captured and held overseas. All this was done under the rubric of proscribing “cruel, inhuman and degrading treatment” — terms that do not seem materially different from those in Common Article 3.
But the McCain amendment has two substantial advantages. First, it is an act of Congress, not a diktat by a court, and accordingly reflects a democratic judgment of the American people. Second, it is anchored in U.S. law. This is greatly preferable to the Supreme Court’s intention that future interpretation of Common Article 3 hinge on “respectful consideration” of the way foreign courts and international tribunals construe the article — a standard that effectively subjects American detention and interrogation practices to a European judicial review that would end them. The McCain Amendment, by contrast, will be applied according to standards that Americans have set, and need not be construed to prohibit aggressive detention and interrogation techniques.
Second, the president’s legislation proposes a new Code of Military Commissions that would strike an appropriate balance between treating captured terrorists justly and safeguarding the nation’s most sensitive classified information. The trial procedures it specifies would grant detainees elaborate notice, discovery, and trial rights, including the right to counsel. But it would circumvent provisions of the Uniform Code of Military Justice — which the Supreme Court took as its guide in the Hamdan ruling — that cannot reasonably be applied to terrorists (for example, Miranda protections more sweeping than those given to civilian criminal defendants). More important, the commissions would have authority to prevent the disclosure of evidence that could compromise the intelligence methods and sources on which our security depends. But any such ruling would be subject in due course to at least two appellate reviews, including one by a federal court in the civilian justice system.
As we approach another national election in which the War on Terror looms front and center, the president has thrown down the gauntlet. He has effectively said to voters: Should it be our priority to maximize the rights of al Qaeda, or to save American lives? The answer should be obvious — as should the choice voters face.