Senators won’t authorize torture, but they won’t prevent it, either.
The good news about the agreement reached yesterday between the Bush administration and Republican senators on the detention, interrogation and trial of accused terrorists is that Congress will not — as President Bush had demanded — pass legislation that formally reinterprets U.S. compliance with the Geneva Conventions. Nor will the Senate explicitly endorse the administration’s use of interrogation techniques that most of the world regards as cruel and inhumane, if not as outright torture. Trials of accused terrorists will be fairer than the commission system outlawed in June by the Supreme Court.
The bad news is that Mr. Bush, as he made clear yesterday, intends to continue using the CIA to secretly detain and abuse certain terrorist suspects. He will do so by issuing his own interpretation of the Geneva Conventions in an executive order and by relying on questionable Justice Department opinions that authorize such practices as exposing prisoners to hypothermia and prolonged sleep deprivation. Under the compromise agreed to yesterday, Congress would recognize his authority to take these steps and prevent prisoners from appealing them to U.S. courts. The bill would also immunize CIA personnel from prosecution for all but the most serious abuses and protect those who in the past violated U.S. law against war crimes.
In short, it’s hard to credit the statement by Sen. John McCain (R-Ariz.) yesterday that “there’s no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved.” In effect, the agreement means that U.S. violations of international human rights law can continue as long as Mr. Bush is president, with Congress’s tacit assent. If they do, America’s standing in the world will continue to suffer, as will the fight against terrorism.
For now, the administration says it is not holding anyone in secret CIA facilities. The detention of those being held by the U.S. military at Guantanamo Bay clearly conforms with international law. If suspects are routed into the CIA program in the future, the administration has pledged to consult with Congress about the interrogation techniques that will be permitted. In theory, Congress could override Mr. Bush’s regulations governing treatment if it judges that they are being used to authorize unacceptable practices.
But the senators who have fought to rein in the administration’s excesses — led by Sens. McCain, Lindsey O. Graham (R-S.C.) and John W. Warner (R-Va.) — failed to break Mr. Bush’s commitment to “alternative” methods that virtually every senior officer of the U.S. military regards as unreliable, counterproductive and dangerous for Americans who may be captured by hostile governments.
Mr. Bush wanted Congress to formally approve these practices and to declare them consistent with the Geneva Conventions. It will not. But it will not stop him either, if the legislation is passed in the form agreed on yesterday. Mr. Bush will go down in history for his embrace of torture and bear responsibility for the enormous damage that has caused.