Tuesday, June 20, 2006
IN THE DAYS and weeks after Sept. 11, 2001, senior Bush administration officials decided that harsh interrogation methods were necessary to prevent devastating attacks on the country -- and that such methods could be carefully administered and limited to the most urgent cases. This thinking proved disastrously flawed. Once the administration lifted the strict regulations that long had governed interrogations of foreign detainees, abusive practices spread quickly across the government. Confusion over rules led to the torture not just of senior al-Qaeda leaders but also of common detainees in Afghanistan and Iraq. The damage done to U.S. honor and prestige around the world, and to America's ability to mobilize support for the fight against Islamic extremism, far outweighed any intelligence gathered.
Many Americans may believe that this lesson has been learned and that U.S.-sanctioned abuse is a thing of the past. Far from it. Yes, Congress last year passed the McCain amendment, which prohibits "cruel, inhuman, or degrading" treatment of all prisoners in U.S. custody. But it has become increasingly clear that the administration has not accepted that ban as the last word. It still has not renounced the right to subject some detainees to practices such as "waterboarding," or simulated drowning, even though they violate the law. It has yet to adopt clear standards governing the interrogation and treatment of foreign prisoners, or return to full compliance with such treaties as the Geneva Conventions and the Convention Against Torture. Until this situation changes, there will be more of the lawlessness and simple confusion that have led to hundreds of cases of abuse, and dozens of homicides, in Afghanistan, Iraq, Guantanamo Bay and elsewhere.
The administration is seeking to evade the McCain ban in more than one way. The law required that the Army's standard interrogation manual, overridden in 2002, once again govern all questioning of prisoners held in Defense Department facilities. But the Pentagon has prepared a new manual; Vice President Cheney and Defense Secretary Donald H. Rumsfeld have pushed for it to include a classified annex in which some harsh techniques are again authorized for use against prisoners deemed "enemy combatants."
The administration is also preparing a new directive on detention that would exclude compliance with Common Article 3 of the Geneva Conventions, which prohibits torture and other cruelty, including "humiliating and degrading treatment." Finally, through a presidential signing statement and questionable legal opinions, the administration is reserving the right to continue using waterboarding and other harsh techniques on prisoners held by the CIA. It argues that the president's power to make war allows him to override congressional restrictions and that waterboarding in some circumstances does not violate the U.S. constitutional prohibition of cruel treatment.
For now, objections from Sen. John McCain (R-Ariz.) and other sponsors of the amendment have caused the administration to delay issuing the new doctrine and manual. The senators are rightly demanding that there be one set of rules for interrogations, and that they be made public. Congress could build on this foundation if it stipulated by law that the Geneva Conventions' Common Article 3 be applied to all U.S. detention operations -- of both the military and the CIA.
Once abuse is entirely banned, there is no reason for the United States not to return to full observance of the Geneva Conventions, and there are many benefits in doing so. Following the Geneva Conventions does not necessarily mean granting prisoner-of-war status, and the many privileges that come with it, to all detainees; al-Qaeda fighters and other terrorists might legally be excluded from POW status following a tribunal hearing. But returning to Geneva could improve the chances that its provisions against inhumane treatment will be respected by other countries, including those that capture American servicemen.
The Convention Against Torture has been ratified by the Senate and should also bind the United States. In a report last month, the U.N. Committee Against Torture, which oversees the convention, spelled out what that would mean. Secret detention of prisoners in CIA facilities, it said, "constitutes, per se, a violation of the Convention"; so does the "rendition" of suspects to other countries where they might be tortured "without any judicial procedure." To come into compliance, the United States must disclose to the International Committee of the Red Cross the identities of all detainees it is holding and allow monitoring of their treatment. It must also give them access to a judicial process or release them as soon as possible.
All of this the United States should in any case want to do, in its own interest. It should establish one set of rules for questioning all prisoners. Those rules should conform with international treaties and the U.S. Constitution, so that inhumane treatment is at all times forbidden. And the rules should be public, so that the world can see that the United States has returned to its fundamental values.
This is the third in a series of editorials about the Bush administration's detention and treatment of foreign prisoners. The full series will be available athttp://www.washingtonpost.com/opinions.