CONGRESS VOTED by an overwhelming margin last month to ban all U.S. personnel from inflicting "cruel, inhuman or degrading" treatment on any prisoner held anywhere by the United States. President Bush, who had threatened to veto the legislation, instead invited its prime sponsor, Sen. John McCain (R-Ariz.), to the White House for a public reconciliation and declared they had a common objective: "to make it clear to the world that this government does not torture and that we adhere to the international convention of torture." His national security adviser, Stephen J. Hadley, said that "the legislative agreement that we've worked out with Senator McCain" makes the ban on cruel, inhuman and degrading treatment "a matter of law that applies worldwide, at home and abroad."
From all that, it might be concluded that the Bush administration has committed itself to ending the use of practices falling just short of torture that it has used on foreign detainees since 2002. But it has not. Instead, it is explicitly reserving the right to abuse prisoners, while denying them any opportunity to seek redress in court. Having publicly accepted the ban on cruel, inhuman or degrading treatment, Mr. Bush is planning to ignore it whenever he chooses. As a practical matter, there may be no change in the operations of the CIA's secret prisons, where detainees have been subjected to such practices as painful shackling, mock execution, induced hypothermia and "waterboarding," or simulated drowning.
The president made his intentions clear in signing the defense bill containing the McCain amendment last month. Mr. Bush issued a presidential signing statement saying his administration would interpret the new law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." The language refers to the assertion by the president's lawyers that his powers allow him, in wartime, to ignore statutes passed by Congress. The White House has intimated that it has similar authority in justifying Mr. Bush's authorization of surveillance of Americans without court approval, in violation of another law. The signing statement also advanced the administration's view that the McCain amendment does not provide for any court review of a prisoner's claim of cruel treatment, and that all appeals by foreign prisoners before the courts should be dismissed.
Even before the statement was issued, administration lawyers had taken the position that the McCain amendment would not necessarily end the use of waterboarding. "Cruel, inhuman or degrading treatment" has been defined by the Senate as any act that would violate the Fifth, Eighth or 14th amendments of the Constitution. Yet according to the reasoning of the Justice Department, simulated drowning and other techniques falling just short of torture would still be permitted under this standard "in certain circumstances." This extreme view has never been tested in court, sanctioned by Congress or even fully exposed to public view. Mr. Bush hopes to keep it that way. That's why his administration has moved so aggressively to prevent prisoners' cases from reaching federal courts and refused to release secret legal memos requested by Congress.
Mr. McCain and Sen. John W. Warner (R-Va.) reacted to the presidential statement with their own, which said, "We believe the President understands Congress's intent in passing by very large majorities legislation governing the treatment of detainees." They noted that a White House request for a presidential waiver of the restrictions had been rejected in the negotiations before the bill was passed. They also pledged "strict oversight to monitor the Administration's implementation of the new law." Follow-through on that promise is urgently needed in the coming months. Without aggressive monitoring -- and possibly further action -- by Congress, illegal abuse of foreign prisoners in the custody of the United States is likely to continue.