A Case for Appeal

Tuesday, September 26, 2006

SEN. JOHN McCAIN (R-Ariz.) declared over the weekend that the compromise on detentions that he and other Republican senators worked out with the White House would bar the most abusive of the CIA's interrogation tactics. Extreme sleep deprivation, induced hypothermia and simulated drownings, he said on CBS's "Face the Nation," would no longer be legal: "I'm confident that some of the abuses that were reportedly committed in the past will be prohibited in the future," he said. We wish we could be as sure.

Mr. McCain's reading of his bill is not implausible; it would define as a crime any interrogation technique "intended to inflict severe or serious physical or mental pain or suffering" on a detainee. But the techniques he cites are not explicitly banned, and the Bush administration's history is one of interpreting limitations on interrogation tactics -- including Mr. McCain's previous legislation banning cruel, inhuman or degrading treatment -- as permitting methods most people regard as torture.

In fact, administration officials have loudly proclaimed that the new bill will allow the CIA's program of secret detention and interrogation to continue -- and the normal means of preventing an extreme interpretation of the law doesn't exist. The compromise bill strips the courts of any jurisdiction to hear cases -- including those cases already pending -- concerning detainee treatment. Unless this provision is changed, the administration will be free to ignore Mr. McCain's interpretation.

This is not the first time Congress has sought to limit judicial supervision of detentions in the war on terrorism. After the Supreme Court's assertion of jurisdiction over Guantanamo Bay, Cuba, in 2004 triggered a series of lawsuits, Congress moved to force their dismissal as part of the Detainee Treatment Act. The court found that the act did not apply to pending cases, leaving the lower courts unable to hear new cases but with jurisdiction over those already filed. The new measure would complete the job, removing jurisdiction over the remaining cases. Judicial review would be limited to appeals of verdicts from the military commissions being created to try detainees and findings of other tribunals that determine a detainee's combatant status.

This is a terrible idea. In general, court-stripping is a nuclear weapon in Congress's relations with the judiciary, one that presents profound constitutional questions and should be used only with the greatest of caution. If Congress passes responsible and lawful policies, judicial review poses no threat but serves to validate their lawfulness. In the context of the war on terrorism, judicial review has been the major lever that has forced the administration to moderate its policies and to seek congressional authorization for them.

The pending litigation, while cumbersome for the administration, has in no sense compromised the war effort. The Senate should adopt an amendment by Judiciary Committee Chairman Arlen Specter (R-Pa.) to restore judicial oversight. Preventing further judicial scrutiny would be reckless.

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