A Blow Against Torture

THANKS TO a belated White House retreat, Congress is on the verge of taking an important step toward curtailing the systematic human rights violations committed by the Bush administration in its handling of foreign prisoners. President Bush said yesterday that he would agree to an amendment by Sen. John McCain (R-Ariz.) prohibiting "cruel, inhuman, or degrading" treatment of all prisoners held by the United States. The president's grudging acceptance came after the House and Senate voted overwhelmingly to reestablish a standard that he wrongly chose to set aside some three years ago. Mr. Bush had threatened to veto any bill containing the amendment; Vice President Cheney campaigned for an explicit authorization for the CIA to abuse its detainees. In response, Congress sent a powerful message -- by votes of 90 to 9 in the Senate and 308 to 122 in the House -- that such policies are unacceptable, even in a global war against terrorism. That it did so was due in large part to Mr. McCain's tenaciousness, which Sen. John W. Warner

(R-Va.) rightly described as "a profile in courage."

Whether Mr. Bush will heed the message, or the new legal standard, unfortunately remains an open question. A close Pentagon ally, Rep. Duncan Hunter (R-Calif.), was still fighting yesterday to dilute the McCain amendment. Concessions already obtained by the administration from Mr. McCain and a separate amendment authored by Sen. Lindsey O. Graham (R-S.C.) could prevent any foreign detainee from seeking relief in a U.S. court in the event that he was tortured, or any CIA personnel from being held accountable for abuse. Mr. Graham and Sen. Carl M. Levin (D-Mich.) recently agreed to yet another administration provision that would -- incredibly -- allow evidence obtained by torture to be considered by military review panels that decide whether to hold prisoners at the Guantanamo Bay naval base as "enemy combatants."

Worse, Mr. Bush's political appointees at the Justice Department and the Pentagon have redefined both "torture" and "cruel, inhuman and degrading treatment" as not covering in all circumstances such CIA techniques as "waterboarding," or simulated drowning; "cold cell," the deliberate induction of hypothermia; mock execution; and prolonged and painful "short-shackling." It has taken these positions even though "cruel, inhuman and degrading treatment" as defined by the Senate covers everything that would be prohibited by the Constitution. In protecting its ability to use these odious techniques, in other words, the administration has adopted logic that accepts, in principle, the idea that the FBI could constitutionally use them on U.S. citizens in certain circumstances.

So passage of Mr. McCain's amendment will not end waterboarding or curtail the administration's policy of abuse unless there is aggressive follow-up by Congress. There must be an independent check on the administration's legal interpretations. One way would be a statutory requirement that all CIA interrogation methods be submitted to congressional intelligence committees for review. A Senate proposal to require regular reports by the administration on the CIA's secret prisons and the status of each prisoner being held could be expanded to cover interrogation plans. A court ruling may be necessary on the administration's theory that the Constitution allows for techniques such as waterboarding; this won't be possible if Congress prohibits foreign prisoners from bringing cases of mistreatment before federal judges.

In short, restoring the rule of law over an administration that deliberately chose lawlessness in its treatment of detainees may be an arduous process. And yet the McCain amendment is a vital, and hard-won, opening move.